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95th Congress "1 
2d Session J 



COMMITTEE PRINT 




REPOR 
OF THE 

SELECT COMMI' 
ON CONGRESSIONAL OPERATIONS 

U.S. HOUSE OF REPRESENTATIVES 

AND THE 

COMMITTEE ON 
RULES AND ADMINISTRATION 

U.S. SENATE 

IDENTIFYING 

COURT PROCEEDINGS AND ACTIONS OF VITAL 
INTEREST TO THE CONGRESS 



CURRENT TO 
DECEMBER 31, 1978 




Printed for the use of the House Select Committee on Congressional 
Operations and the Senate Committee on Rules and Administration 



95 ^ 5 on ? ress 1 COMMITTEE PRINT ( PART 6 

2d Session j I 



REPORT 

OF THE 

SELECT COMMITTEE 
ON CONGRESSIONAL OPERATIONS 

U.S. HOUSE OF REPRESENTATIVES 

PURSUANT TO 

HOUSE RESOLUTION 420 
NINETY-FIFTH CONGRESS 

AND THE 

COMMITTEE ON 
RULES AND ADMINISTRATION 

U.S. SENATE 

PURSUANT TO 

SENATE RULE XXV, (n) (2) 

IDENTIFYING 

COURT PROCEEDINGS AND ACTIONS OF VITAL 
INTEREST TO THE CONGRESS 



Current to December 31, 1978 




Printed for the use of the House Select Committee on Congressional 
Operations and the Senate Committee on Rules and Administration 



U.S. GOVERNMENT PRINTING OFFICE 
37-148 O WASHINGTON : 1978 



SELECT COMMITTEE ON CONGRESSIONAL OPERATIONS 

U.S. HOUSE OF REPRESENTATIVES 

JACK BROOKS, Texas, Chairman 

ROBERT N. GIAIMO, Connecticut JAMES C. CLEVELAND, New Hampshire 

JAMES L. OBERSTAR, Minnesota JOHN M. ASHBROOK, Ohio 

JOHN L. BURTON, California 
ADAM BENJAMIN, Jr., Indiana 

COMMITTEE ON RULES AND ADMINISTRATION 

U.S. SENATE 

CLAIBORNE PELL, Rhode Island, Chairman 

HOWARD W. CANNON, Nevada MARK O. HATFIELD, Oregon 

ROBERT C. BYRD, West Virginia ROBERT P. GRIFFIN, Michigan 

HARRISON A. WILLIAMS, Jr., HOWARD H. BAKER, Jr., Tennessee 

New Jersey 
DICK CLARK, Iowa 

(ID 



CONTENTS 



Court Proceedings and Actions of Vital Interest 
to the Congress 

Page 

Introduction ix 

I. Constitutional Qualifications of Members of Congress: 

Clancey v. Albert 1 

Laxalt v. Kimmitt 2 

II. Constitutional Immunity of Members of Congress: 

Davis v. Passman 7 

McSurely v. Mc Adams (formerly McClellan) 14 

Hutchinson v. Proxmire 23 

United States v. Helstoski 28 

Helstoski v. Meanor 28 

Chase v. Kennedy 37 

Rusack v. Harsha 38 

III. Powers of Congressional Committees: 

United States v. American Telephone and Telegraph Co. . 43 

Koniag Inc. v. Andrus (formerly Kleppe) 50 

Exxon Corp. v. Federal Trade Commission 55 

Kerr-McGee Corp. v. Federal Trade Commission 55 

Union Carbide Corp. v. Federal Trade Commission 55 

United States v. Berrellez 62 

United States v. Gerrity 63 

Holy Spirit Association v. Fraser 64 

In re Beef Industry Antitrust Litigation 65 

Iowa Beef Processors, Inc. v. Bagley 66 

United States v. Powell 68 

Application of Senate Select Committee on Ethics 69 

Application of House Select Committee on Assassina- 
tions 69 

IV. Constitutional Powers of the Congress: 

Chadha v. Immigration and Naturalization Service 71 

Nixon v. Sampson 73 

Nixon v. Solomon 92 

Citronelle-Mobile Gathering, Inc. v. Gulf Oil Corp 93 

Goland v. Central Intelligence Agency 95 

Daughtrey v. Carter 101 

Schwartz v. United States Department of Justice 106 

Goldwater v. Carter 109 

V. Officers, Employees, and Agents of the Congress: 

Socialist Workers v. Henshaw (formerly Jennings) 113 

United States v. Elko 116 

Brislin v. United States 116 

<iin 



IV 

Page 

V. Officers, Employees, and Agents of the Congress — Continued 
Common Cause v. Bolger (formerly Bailar, formerly 

Klassen) 117 

Lewis v. Chisholm 135 

Abney v. United States Capitol Hill Policeman 136 

Martin Tractor Co. v. Federal Election Commission 136 

VI. Disputed Elections: 

Moreau v. Tonry 141 

VII. Other Actions Involving Members in a Representative 

Capacity: 

Dellums v. Powell 145 

Powell v. Dellums 145 

Wilson v. Dellums 145 

Sportservice Corp. v. Steiger 149 

Reuss v. Balles 150 

United States v. Podell 155 

Clay v. Bauman 157 

McRae v. Califano 158 

Ray v. Proxmire 161 

Young v. New York Times 162 

Rosen v. Young 163 

Gardner v. Young 164 

Helstoski v. Goldstein 164 

Cervase v. Rangel 165 

United States v. Goldberg 167 

United States ex rel. Joseph v. Cannon 172 

United States v. Hanna 173 

United States v. Passman 174 

United States v. Diggs 175 

Community-Service Broadcasting of Mid-America, Inc. v. 

Federal Communications Commission 176 

Patterson v. Griffin 180 

Littlejohn v. Talmadge 181 

United States v. Clark 182 

United States v. Flood 183 

United States v. Eilberg 184 

In re Japanese Electronic Products Antitrust Litigation.. 184 

Decisions 

Rusack v. Harsha 189 

Exxon Corp. v. Federal Trade Commission 215 

Kerr-McGee Corp. v. Federal Trade Commission 215 

Union Carbide Corp. v. Federal Trade Commission 215 

Iowa Beef Processors, Inc. v. Bagley (District Court, 

February 13, 1978) 237 

Iowa Beef Processors, Inc. v. Bagley (District Court, 

November 24, 1978) 249 

Iowa Bee f Processors, Inc. v. Bagley (Court of Appeals) .. 251 

Nixon v. Sampson 257 

Schwartz v. United States Department of Justice (Au- 
gust 30, 1977) 273 

Schwartz v. United States Department of Justice (De- 
cember 12, 1977) 275 



Decisions — Continued 

Page 

Schwartz v. United States Department of Justice (Febru- 
ary 9, 1978) 277 

Lewis v. Chisholm 283 

Martin Tractor Co. v. Federal Election Commission 285 

Dellums v. Powell 293 

Cervase v. Rangel 313 

United States v. Passman 321 

United States v. Clark 335 

Appendix 

Members of the 95th Congress parties to or directly concerned 

with litigation affecting Congress 345 

Index 

Table of Cases Reported 349 



Digitized by the Internet Archive 
in 2013 



http://archive.org/details/represetcoOOunit 



HOUSE RESOLUTION 420 (95TH CONG., 1ST SESS.) 

Select Committee on Congressional Operations 

******* 

FUNCTIONS OF SELECT COMMITTEE 

Sec. 3. (a) The select committee shall continue the func- 
tions of the Joint Committee on Congressional Operations 
for the House, as follows: 



(2) Identifying any court proceeding or action which, in 
the opinion of the select committee, is of vital interest to the 
Congress, or to the House of Representatives as a constitu- 
tionally established institution of the Federal Government, 
and calling such proceeding or action to the attention of the 
House. 



SENATE RULE XXV, (n)(2) 

Committee on Rules and Administration 

***** 

Such committee shall also — 



(B) Identify any court proceeding or action which in the 
opinion of the committee, is of vital interest to the Congress 
as a constitutionally established institution of the Federal 
Government and call such proceeding or action to the 
attention of the Senate. 

(VII) 



INTRODUCTION 

In accordance with the provisions of House Resolution 420 of the 
95th Congress and Senate Rule XXV, the Select Committee on 
Congressional Operations and the Senate Committtee on Rules and 
Administration are continuing the practice of reporting on court 
cases and actions of importance to the Congress as a constitutionally 
established institution of the Federal Government. 

This report, the sixth report for the 95th Congress, provides case 
briefs, accounts of the status of court proceedings and the full text of 
decisions in cases which the committees have identified as being of 
vital interest to the Congress. Major changes in the briefs of previ- 
ously reported cases appear in bold type. Those filed before the 
publication of the most recent preceding report but appearing in the 
reporting series for the first time are described as "(Newly Reported 
Cases)." Cases filed after the publication of the most recent preced- 
ing report are designated as "(New Cases)." 

The committees intend to continue the practice of publishing 
reports of court proceedings and actions periodically throughout the 
96th Congress. In addition, the committees also intend to publish a 
complete collection of the cases which have appeared in this series. 

We encourage comments from all Members of Congress and others 
who use this report as an information source and research document. 
We also would welcome and appreciate any information or sugges- 
tions as to pending court proceedings and actions which do not 
appear in this report. 

Jack Brooks, Chairman, 
House Select Committee on 

Congressional Operations. 

Claiborne Pell, Chairman, 

Senate Committee on Rules 

and Administration. 

(IX) 



COURT PROCEEDINGS AND ACTIONS OF VITAL 
INTEREST TO THE CONGRESS 

I. Constitutional Qualifications of Members of Congress 

Clancey v. Albert 

Civil Action No. 77-3010 (Ninth Cir.) 

Brief. — Michael Patrick Clancey, a resident of the 40th Congres- 
sional District of California, filed this complaint on March 25, 1976, 
in the United States District Court for the Central District of 
California. In it he named as defendants then-Representative Carl 
Albert, individually and as Speaker of the U.S. House of Repre- 
sentatives; Representative John J. Flynt, individually and as Chair- 
man of the House Committee on Standards of Official Conduct; 
then-Representative Andrew J. Hinshaw, individually and in his 
official capacity as a Congressman in the U.S. House of Representa- 
tives; Edmund L. Henshaw, Jr., individually and in his official 
capacity as Clerk of the U.S. House of Representatives; and the 
U.S. House of Representatives. 

The complaint alleges that the defendants have denied plaintiff 
and other U.S. citizens residing within the 40th Congressional Dis- 
trict of California their constitutional right to be represented in 
the House of Representatives by enforcement of a rule which pre- 
cluded then-Congressman Andrew J. Hinshaw, who had been con- 
victed in the California courts on two felony counts unrelated to 
his service in Congress, from voting or participating in Congres- 
sional matters. Rule XLIII, clause 10 of the U.S. House of Repre- 
sentatives states: 

A Member of the House of Representatives who has 
been convicted by a court of record for the commission of a 
crime for which a sentence of two or more years' imprison- 
ment may be imposed should refrain from participation in 
the business of each committee of which he is a member 
and should refrain from voting on any question at a meet- 
ing of the House, or of the Committee of the Whole House, 
unless or until judicial or executive proceedings result in 
reinstatement of the presumption of his innocence or until 
he is reelected to the House after the date of such convic- 
tion. 

Mr. Clancey argues that Rule XLIII, clause 10, is unconstitution- 
al in that it contravenes Article I, Section 5 and other provisions of 
the U.S. Constitution and thereby results in taxation without rep- 
resentation. 

He also contends that the House Rule which barred participation 
by Representative Hinshaw is defective and inappropriate, that it 
should be replaced by a House proposal to amend the Constitution 
to provide qualifications for Members of Congress in addition to 

(1) 



those prescribed in Article I, Section 5, and therein to establish a 
Code of Ethics through which a Member can be expelled and 
replaced for certain illegal or unethical activities. 

On June 2, 1976, while this action was pending in the District 
Court, Mr. Clancey filed in the U.S. Supreme Court a motion for 
leave to file a petition for a writ of mandamus commanding the 
defendants to vacate Rule XLIII, clause 10 and that a writ of 
prohibition be issued prohibiting the defendants from enforcing 
this provision. On July 16, 1976, the defendants filed an opposition, 
stating that the Supreme Court had neither original nor appellate 
jurisdiction in this matter. On October 4, 1976, the Court denied 
Mr. Clancey's motion to file his petition. 

On June 18, 1976, defendants Albert and Flynt filed in the Dis- 
trict Court a motion to dismiss on the grounds that (1) the court 
lacks jurisdiction over the subject matter of the complaint, (2) the 
U.S. House of Representatives may not be sued in that name, (3) 
this action as against the defendant Congressmen is barred by 
virtue of the Speech or Debate clause of the Constitution, (4) the 
action should be dismissed because venue is improper, and (5) the 
court lacks personal jurisdiction over the defendant Congressmen. 

On July 27, 1976, the District Court entered orders: 

(1) dismissing the U.S. House of Representatives from this action 
on the ground that the action as against the said defendant is 
barred by the doctrine of sovereign immunity; and (2) dismissing 
Congressmen Carl Albert and John J. Flynt, Jr., from the action on 
the grounds that the action as against them is barred by the 
Speech or Debate clause of the U.S. Constitution (Article I, Section 
6, clause 1). 

A motion to dismiss the Clerk of the House as a defendant was 
filed on January 21, 1977. 

On April 4, 1977, the District Court dismissed the action as moot. 

On April 19, 1977, the plaintiff filed a notice of appeal. The cause 
was docketed in the Court of Appeals on September 1, 1977. 

Status. — The appeal is currently pending before the U.S. Court of 
Appeals for the Ninth Circuit. 

Laxalt v. Kimmitt 

Nos. 78-1437 and 78-1438 (D.C. Cir.) 

Brief. — On July 14, 1977, Senators Paul Laxalt, Barry Goldwater, 
Carl Curtis, S. I. Hayakawa and Lowell Weicker filed this action in 
the Federal District Court for the District of Columbia and asked 
that a three-judge court be convened to hear the case. The Senators 
were joined in the suit by the Committee for the Survival of a Free 
Congress (hereinafter "CSFC") an unincorporated political commit- 
tee which contributes to campaigns of candidates for public office. 

The suit asks that Rule XLIV of the Senate Ethics Code, and if 
necessary, the entire Ethics Code be declared null and void as 
violative of several provisions of the Constitution. Named as de- 
fendants are the Chairman of the Senate's Select Committee on 
Ethics, Senator Adlai E. Stevenson III, and the Secretary of the 
Senate, J. S. Kimmitt, who as the chief administrative officer of 
the Senate, the plaintiffs assert, ' 'causes the Ethics Code and all 
reports, resolutions, and other actions of the Select Committee on 



Ethics to be disseminated to Senators and elsewhere." [Laxalt v. 
Kimmitt, No. 77-1230 (D.D.C.), Complaint at 6.] Additionally, the 
plaintiffs allege that Senator Stevenson and Mr. Kimmitt are "re- 
sponsible for and exercise ministerial jurisdiction over the enforce- 
ment of the Ethics Code by said Committee and by the Senate." 
[Complaint at 7.] 

Particularly the plaintiffs attack the limits on outside earned 
income prescribed by Rule XLIV. The Rule, which becomes effec- 
tive in 1979 would, among other things, limit the amount of "out- 
side earned income' ' a Senator could earn in a year to 15 percent of 
the aggregate amount of base salary paid to Senators and disbursed 
by the Secretary of the Senate. 

The plaintiffs first allege that this limitation in fact constitutes a 
qualification for membership in the Senate in addition to and 
therefore in violation of Article I, Section 3, clause 3 of the Consti- 
tution which reads in full: 

"No person shall be a Senator who shall not have at- 
tained to the Age of thirty Years, and been nine Years a 
Citizen of the United States, and who shall not, when 
elected, be an Inhabitant of that State for which he shall 
be chosen." 

Next the Senate plaintiffs assert that by limiting the compensa- 
tion they can receive for speaking and by putting them in jeopardy 
of "political ruin and personal vilification" if they violate Rule 
XLI V, the Rule deprives them of their rights to freedom of speech 
under the First Amendment. They also assert that their First 
Amendment associational rights are denied by the Rule because 
they are precluded from supporting without similar risk candidates 
for the Senate who have earned, earn, or may earn in excess of the 
"outside earned income" limit prescribed by the Rule. 

The CSFC also asserts that the Rule deprives it of its First 
Amendment right to support senatorial candidates "who have 
earned, earn, or may earn such prescribed sums." [Complaint at 8.] 

As a third count the Senate plaintiffs assert that the Rule's 
limitation on "outside earned income" violates the Fifth Amend- 
ment of the Constitution in that by prohibiting them from receiv- 
ing such "outside earned income" it deprives them of liberty and 
property without due process of law. 

The Senate plaintiffs, in the fourth count of their complaint, 
allege that Rule XLIV denies and disparages their Ninth Amend- 
ment rights to earn "outside earned income" over the limit and to 
support candidates for the Senate "who have earned, earn, or may 
earn in excess of said limitation." [Complaint at 9.] Additionally, 
they assert that the Rule is an unjustified intrusion of their priva- 
cy in violation of the Fifth and Ninth Amendments. The CSFC also 
asserts that the Rule violates its Ninth Amendment right to sup- 
port candidates for the Senate who have earned, earn, or may earn 
in excess of the "outside earned income limitation." 

As a final count, the Senate plaintiffs assert that the Rule invi- 
diously discriminates against them and denies them the equal pro- 
tection of the laws in that the Rule limits "outside earned income," 
but places no limitation on inherited income, "unearned" income, 
the income of a spouse, or income from a trust fund. They further 



assert that the "outside earned income" limitation is "an improper 
classification" because it "bears no reasonable relation to the pur- 
ported purpose of the Senate Ethics Code." [Complaint at 10.] 

The CSFC also asserts that it is invidiously discriminated against 
and denied the equal protection of the laws in that Rule XLIV 
effectively precludes it from supporting Senate candidates whose 
"outside earned income" is in excess of the Rule's limitations. 

On August 11, 1977, Common Cause, David Cohen, President of 
Common Cause and Nan Waterman, Chairwoman of Common 
Cause, citing Common Cause's "history of involvement in the en- 
actment of ethics rules" including the Rule complained of by the 
plaintiffs, filed a motion to intervene as defendants in the action. 

On September 2, 1977, the motion to intervene as party defend- 
ants filed by Common Cause, David Cohen, and Nan Waterman 
was granted. 

On December 21, 1977, the intervening defendants moved to 
dismiss the action. 

On December 23, 1977, plaintiffs filed an amended complaint in 
which they deleted their prayer for convocation of a three-judge 
District Court pursuant to the provisions of 28 U.S.C. §§ 2282 and 
2284. 

The congressional defendants moved to dismiss the amended 
complaint on January 9, 1978. 

On January 30, 1978, the intervening defendants, Common 
Cause, Mr. Cohen and Ms. Waterman, filed a memorandum in 
opposition to defendants' motion to dismiss. 

The congressional defendants' motion to dismiss was heard and 
granted on March 3, 1978. 

On March 13, 1978, an order dismissing the action was filed. The 
court first found that the amended complaint sufficiently alleged 
the requisite jurisdictional amount. The order declared that Rule 
XLIV does not add to the constitutional qualifications for Senate 
membership nor does it deprive the plaintiffs of their freedom of 
speech. Additionally, the order stated that the Rule's differenti- 
ation between earned and unearned income does not constitute 
unlawful discrimination. Therefore, the Court further concluded, 
the complaint fails to state a claim on which relief can be granted 
and that the amended complaint does not allege a justiciable case 
or controversy. 

Finally, the Court declared that its disposition of the issues al- 
ready mentioned made it unnecessary for the Court to address the 
question of standing. 

Plaintiffs filed a notice of appeal on March 24, 1 978. 

On April 6, 1978, defendants Kimmitt and Stevenson filed a 
notice of cross-appeal from those portions of the final judgment of 
the District Court which (1) hold that the first amended complaint 
sufficiently alleges the requisite jurisdictional amount and (2) con- 
clude that the disposition of other issues raised by the motions of 
the defendants makes it unnecessary to dispose of the issues raised 
with respect to the standing of the plaintiff, Committee for the 
Survival of a Free Congress and the intervenors, Common Cause, 
David Cohen and Nan Waterman. 

The appeal and the cross-appeal were consolidated by order of 
Circuit Judge Wright, sua sponte, on June 5, 1978. 



On December 8, 1978, appellants moved to add Senator Mike 
Gravel as a party appellant. 

Status. — The case is pending before the U.S. Court of Appeals for 
the District of Columbia Circuit. 

The March 13, 1978 order of the District Court is printed in the 
"Decisions" section of the report of Court Proceedings and Actions 
of Vital Interest to the Congress, Part 4, May 15, 1978. 



II. Constitutional Immunity of Members of Congress 

Davis v. Passman 

No. 78-5072 (U.S. Supreme Court) 

Brief. — Plaintiff, Shirley Davis, served as deputy administrative 
assistant on the staff of Representative Otto E. Passman from 
February 1, 1974 through July 31, 1974, on which date her employ- 
ment was terminated. She filed this complaint, naming then-Repre- 
sentative Passman as defendant, in the U.S. District Court for the 
Western District of Louisiana on August 7, 1974, alleging that she 
had been discriminatorily dismissed from defendant's Congression- 
al staff because of her sex, in violation of her constitutional rights 
under the Fifth Amendment. 

Plaintiff supplemented her complaint with a letter from the 
defendant, in which Mr. Passman indicated, in dismissing her, that 
he had concluded "it was essential that the understudy to my 
Administrative Assistant be a man." 

Representative Passman filed a motion to dismiss the complaint, 
stating: (1) The alleged conduct of the defendant is not violative of 
the Fifth Amendment; (2) the law affords no private right of action 
to plaintiff; and (3) the doctrines of official and sovereign immunity 
bar any action against the defendant. 

In a hearing on February 24, 1975, U.S. District Judge Tom 
Stagg, of the U.S. District Court for the Western District of Louisi- 
ana, dismissed plaintiffs complaint on the grounds that it failed to 
state a claim against Mr. Passman upon which relief could be 
granted. The court held that the alleged sex discrimination by Mr. 
Passman did not violate the Fifth Amendment to the Constitution 
and that the law affords no private right of action to plaintiff. The 
court further held, however, that Mr. Passman's defense of sover- 
eign and official immunity was not well founded. 

Mrs. Davis filed an appeal with the U.S. Court of Appeals for the 
Fifth Circuit on March 20, 1975. 

Representative Passman filed his response with the Court of 
Appeals on June 9, 1976. While supporting the District Court's 
decision to grant his motion to dismiss, he reasserted his conten- 
tion that the doctrines of "sovereign and official immunity" are a 
bar to Mrs. Davis' claim. 

The Court of Appeals in its decision of January 3, 1977, rejected 
Representative Passman's assertions of sovereign, official and 
Speech or Debate clause immunity. After determining that the 
allegations asserted by Mrs. Davis would, if proven, constitute a 
violation of her constitutional rights, the majority took up the 
question of whether the claim was one upon which relief could be 
granted. The court noted that Mrs. Davis was seeking three types 
of relief: specific relief, damages, and a declaratory judgment. 
th ™ n & ^ lrst t° the question of specific relief the court noted 
that there were three remedies requested: Reinstatement, promo- 

(7) 



8 

tion, and an injunction against unlawful discrimination. Of those 
three remedies only the claim for an injunction "might raise a 
sovereign immunity issue * * *." [Davis v. Passman, 544 F.2d at 
865, 871 (5th Cir. 1977).] The court further noted that Representa- 
tive Passman's defeat in his bid for reelection has caused Mrs. 
Davis' requests for reinstatement and a promotion to lose their 
significance. "That the term is not yet completely over saves the 
specific-relief claims from technical mootness * * V [544 F.2d at 
872.] 

As for Mrs. Davis' claim for damages the court found that dam- 
ages would be an appropriate remedy for the allegation of constitu- 
tional violation and that Representative Passman's assertions of 
immunity were not well taken. As to whether sovereign immunity 
would bar recovery, the court concluded that the damages sought 
were against Representative Passman individually, not against the 
United States. The court declared: "When, as here, an action seeks 
to impose liability upon a Government official in an individual 
capacity, sovereign immunity poses no bar. Although sovereign 
immunity sometimes shields the U.S. Treasury from a plaintiffs 
claims, it does not protect the personal checkbook of an individual 
Government official to any extent at all." [544 F.2d at 877.] 

Turning next to the question of whether Speech or Debate clause 
immunity was an absolute shield against the action, the court 
stated that such immunity was available only for actions taken in 
the legislative process. The court concluded that "representatives 
are not immune from inquiry into their decisions to dismiss staff 
members. Such dismissal decisions certainly are not 'an integral 
part of the deliberative and communicative processes by which 
Members participate in committee and House proceedings with 
respect to the consideration and passage or rejection of proposed 
legislation or with respect to other matters which the Constitution 
places within the jurisdiction of either House' * * *." [544 F.2d at 
880.] 

The court then rejected Representative Passman's argument that 
he was protected by the doctrine of official immunity. The court 
further noted that its rejection of Speech or Debate clause immuni- 
ty precluded Representative Passman from asserting an absolute 
immunity. As for a qualified immunity, the court noted that such 
immunity was generally limited to good faith, nonmalicious action. 
The court concluded that "[i]n light of the settled, indisputable 
principle that Federal Government sex discriminations not sup- 
ported by rational (or perhaps compelling) legitimate justifications 
are unconstitutional * * *, the likelihood that Representative Pass- 
man will be able successfully to maintain a good faith defense even 
under the liberal standard governing Congressional staffing deci- 
sions appears very remote." [554 F.2d at 881-882.] 

As for the declaratory relief requested by Mrs. Davis, the court 
declined to rule on the propriety of such relief, noting that "the 
absence of any forward-looking scope of operation for any declara- 
tion of Davis' rights as against Representative Passman, whose 
Congressional tenure is virtually at its end, would make the propri- 
ety of such a declaration questionable." [544 F.2d at 882.] 



The dissent concluded that the doctrine of separation of powers 
required that the dismissal of the action by the District Court be 
affirmed. 

The case was remanded to the District Court for further action. 

On February 16, 1977, Mr. Passman filed a motion for rehearing 
en banc. 

On March 15, 1977, the Department of Justice filed a brief 
amicus curiae with the Court of Appeals supporting the motion for 
rehearing and asking leave to participate in oral argument if the 
motion for rehearing were granted. 

On March 31, 1977, a motion for leave to file an amicus brief in 
opposition to the motion for rehearing was filed by individuals who 
are members of the House Fair Employment Practices Committee. 
According to the motion: 

The House Fair Employment Practices Committee was 
formed pursuant to the House Fair Employment Practices 
Agreement. This committee is a voluntary organization; it 
is not a Standing or Select Committee formed by resolu- 
tion of the House of Representatives. It consists of six 
elected members. Three of these members are the U.S. 
Representatives filing this motion who were elected by the 
Representatives signing the agreement. The other three 
members are the congressional employees who are joining 
in the filing of the motion and who were elected by the 
employees of those Representatives signing the agreement. 
[Motion by the Honorable Morris Udall, et al, for Leave to 
File a Brief Amicus Curiae at 2, Davis v. Passman, No. 75- 
1691 (5th Cir.).] 

The three Members of the House of Representatives on the com- 
mittee, Representatives Morris Udall, Patricia Schroeder, and 
Charles Rose, and the three Congressional employees on the com- 
mittee assert that the case was "competently and fully argued and 
decided," [Id. at 3], and that the petition for rehearing should be 
denied. 

On April 18, 1977, Representative Don Edwards filed a letter 
with the court in which he said that the Justice Department had 
intervened in the matter without Congressional request or approv- 
al and that in his view the court's decision was sound and reconsid- 
eration or rehearing was not necessary. He also asserted that the 
Justice Department's brief does not accurately describe the alleged 
burdens this decision would place upon Members of Congress. He 
asked that he be allowed to file an amicus brief if a rehearing were 
granted. 

On May 17, 1977, the court granted the petition for a rehearing 
en banc. 

On August 19, 1977, a letter was filed advising the court that the 
United States would appear at the oral argument as amicus curiae. 

On September 26, 1977, the case was reheard en banc. 

On April 18, 1978, the U.S. Court of Appeals for the Fifth Circuit 
rendered its decision en banc in an opinion reversing the earlier 
panel opinion. In so doing, the earlier judgment of the U.S. District 
Court dismissing Mrs. Davis' claim was affirmed on the ground 
that the law affords her no private right of action in the Federal 



10 

courts for money damages. The en banc opinion vacated the deci- 
sion of the District Court in regard to that court's holding that the 
conduct of which Mrs. Davis complained did not violate the Consti- 
tution. 

To determine whether a cause of action for money damages 
would lie for a violation of Fifth Amendment due process rights the 
court first noted that the Supreme Court had found that such a 
remedy was available to parties asserting a violation of their 
Fourth Amendment rights [Bivens v. Six Unknown Named Agents 
of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 
L.Ed.2d 619 (1971)]. Concluding that the award of money damages 
in Bivens was implied as a matter of Federal common law, and as 
such subject to the power of Congress to alter or withdraw, the 
court set forth a two-step analysis to determine whether the money 
damages sought by Mrs. Davis could be implied in the Federal 
common law for a violation of Fifth Amendment due process 
rights: 

First, we look to the jurisprudence of statutory implication 
to determine whether to imply a damage action of non- 
constitutional dimensions. Second, if this initial inquiry 
does not suggest that such an action should be implied, we 
must determine whether the Constitution nevertheless 
compels the existence of a remedy in damages to vindicate 
the rights asserted. [Slip Opinion at 3511.] 

The majority noted four factors which have been utilized in the 
past to determine whether to imply a cause of action from a right 
created by statute: (1) whether the provision asserted creates an 
especial right in the plaintiff, (2) whether the action of Congress in 
the field indicates an intent to allow such a remedy or at least an 
intent not to deny the remedy, (3) whether implication of the 
remedy would be consistent with the purpose of the right asserted, 
and (4) whether the cause of action implied would be one appropri- 
ate for Federal law. The court concluded that each of these factors 
militated against Mrs. Davis' claim. 

As to the question of an especial right, the opinion stated: 

While the fifth amendment Due Process Clause surely 
exists for the "especial benefit ,, of Davis, as Cort [Cort v. 
Ash, 422 U.S. 66 (1975)] required, it does not exist with 
equal certainty to protect her tenure in a non-competitive 
personal aide position statutorily denominated as service 
at will. 2 U.S.C.A. § 92. [Slip Opinion at 3511.] 

The court found that the action of the Congress in excluding 
Congressional employees from the protection of Title VII of the 
1964 Civil Rights Act and the 1972 amendments thereto coupled 
with 2 U.S.C.A. § 92 (which provides that Members of a Congress- 
man's personal staff are removable by him "at any time * * * with 
or without cause") was instructive as to Congressional intent. 

The court further noted that: 

Implying the cause of action asserted by Davis would 
have the anomalous result of granting federal employees 
in non-competitive positions, whom Congress did not 
intend to protect, a remedy far more extensive than Con- 



11 

gress adopted for federal employees in the competitive 
Services, whom it did intend to protect. [Slip Opinion at 
3512.] 
As to the question of consistency of the implication of the 
remedy of damages with the statutory purpose, the court noted 
that substantial difficulties existed in providing money damages for 
violation of Fifth Amendment due process rights which were not 
oresent when the court implied such a remedy for violation of 
Fourth Amendment rights. On this point the court stated: 

Violations of fourth amendment rights occur in a well- 
defined setting familiar to the courts. The relationship is 
always one between law enforcement officials and citizens 
suspected of possessing evidence of crime. The context in 
which these violations may arise is sufficiently limited to 
allow the court to determine that an action for damages 
would be consistent with the purpose of the fourth amend- 
ment in future instances in which such an action might be 
invoked. The fifth amendment Due Process Clause pre- 
sents no similarly focused remedial issue. To the contrary, 
the breadth of the concept of due process indicates that 
the damage remedy sought will not be judicially manage- 
able and that there is simply no way a court can judge 
whether this remedy will be appropriate for securing the 
right in future situations where some plaintiff might 
assert it. [Slip Opinion at 3513.] 

Summarizing the holding of the court on whether to imply a 
cause of action for money damages, the opinion stated: 

Not only does this case fail to present special remedial 
difficulties analogous to those faced by the court in dealing 
with the fourth amendment, but also Congress avoided 
creating an action for money damages for Congressional 
aides in non-competitive positions. Moreover, implying this 
damage action necessarily would draw into the Federal 
judicial system a wide range of cases whose resolution 
Congress has not committed to the Federal judiciary and 
whose resolution is better suited to courts of general juris- 
diction. These special considerations * * * eliminate any 
question of our creating a remedial right under our federal 
common law power. [Slip Opinion at 3514.] 

Turning to the question of whether the remedy of damages might 
yet be constitutionally compelled as indispensable to the effectu- 
ation of the Fifth Amendment Due Process clause and thus not 
subject to Congressional preclusion, the court noted: 

Denying an implied cause of action for money damages 
does not render meaningless any constitutional rights of 
Congressional employees. A plaintiff might still seek equi- 
table relief where the employer remained in office, al- 
though Congressional employees in the non-competitive 
service whose allegedly discriminating employers are not 
in office may be left without a remedy for sex discrimina- 
tion in employment unless Congress reverses its present 



12 

statutory stand. Other due process wrongs would either 
continue to be remedied in traditional ways through tort 
actions in courts of appropriate general jurisdiction or 
through special statutory remedies provided by state legis- 
latures or Congress. Admittedly, some not now covered 
would remain inactionable. [Slip Opinion at 3514-15; (foot- 
note omitted).] 

The opinion also noted that Article III, Section 1 of the Constitu- 
tion, pursuant to which Federal District and Circuit Courts of 
Appeals are established, could be rendered meaningless by the 
increased number of cases which might be brought in those courts, 
' 'crushing an already precariously overloaded Federal judicial 
system" were an implied cause of action for damages for violation 
of Fifth Amendment due process rights held to be available. 

In Circuit Judge Jones' special concurring opinion he declared: 

I do not believe that the constitutional provisions here 
pertinent are to be confined to the Speech and Debate 
clause. 1 The broader provisions by which all legislative 
powers are vested in the Congress 2 is relevant to the 
cause. 



J The Senators and Representatives for any speech or debate in either 
House shall not be questioned in any other place. U.S. Const. Art. I, Sec. 
6(1). 

2 U.S. Const. Art. I, Sec. 1. 



[T]he court should say that the hiring and firing of his 
"alter ego" is a legislative activity and a part of the exer- 
cise of the legislative power. The question is not one of 
whether there is a judicial remedy. The question, as I see 
it, is whether the controversy is one involving the exercise 
of the legislative power and within the jurisdiction of the 
Congress. Let it decide whether there should be absolute 
immunity. Let it determine whether there is a right and if 
so to fashion a remedy and designate a tribunal to declare 
and enforce it. I think it should have been held that the 
complaint does not state a claim upon which relief can be 
granted. [Slip Opinion at 3515-3516.] 

In dissent, Judge Goldberg, joined by Chief Judge Brown, reject- 
ed the majority's conclusion that no private cause of action for 
money damages could be implied from the Due Process clause of 
the Fifth Amendment. As to the question of whether the Speech or 
Debate clause served as a bar to the action, the dissent adopted the 
original decision of the Appeals Court panel which had concluded 
that it did not. 

As to the majority's comment that equitable relief might be 
available to Congressional employees discriminatorily dismissed 
from their jobs, Judge Goldberg declared: 

The majority's unelaborated suggestion of "equitable 
relief is oblivious to those constitutional values, critically 
implicated in this case, underlying the speech or debate 
clause and the doctrine of separation of powers. Congress 
has spoken specifically to its views on the nature of the 



13 

working relationship between Congressmen and their per- 
sonal staffs by classifying employees like Mrs. Davis as 
removable "at any time * * * with or without cause." The 
Supreme Court has accorded congressional staffers speech 
or debate clause protections in certain circumstances, rec- 
ognizing that staffers may act as congressional alter egos 
in the performance of certain legislative tasks. Gravel v. 
United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 
(1972). See Davis v. Passman, 544 F.2d at 877-81 (panel 
opinion). Apparently the majority feels these values can be 
better effectuated, consistent with the requirements of the 
fifth amendment, not by actions for damages but by in- 
junctive orders requiring Congressmen to employ particu- 
lar individuals. This is not the occasion for a definitive 
statement on the circumstances which might justify impli- 
cation of a private action for equitable relief to vindicate 
fifth amendment rights. But on the facts of the case before 
us, I would have thought that such ' 'special factors coun- 
selling hesitation in the absence of affirmative action by 
Congress," Bivens, 403 U.S. at 396, 91 S.Ct. at 2005, are 
more germane to the implication of equitable relief than to 
implication of an action for damages. 

Similarly, it would seem to me that the special problems 
of congressional immunity under the speech or debate 
clause and the doctrine of separation of powers render this 
case uniquely appropriate for adjudication in the federal 
courts under a federal cause of action. Much of the Bivens 
opinion concerns the difficulties and inadequacies of state 
court or state law adjudications of federal immunities in 
the context of constitutional claims; that reasoning is, if 
anything, even more powerful with respect to the issues 
presented here. [Slip Opinion at 3528; (footnote omitted).] 

Mrs. Davis filed a petition for writ of certiorari with the United 
States Supreme Court on July 17, 1978. The petition characterized 
the issues upon which the writ was sought as whether a cause of 
action for money damages may be implied directly from the Fifth 
Amendment where there is no alternative remedy available and, if 
so, whether the Speech or Debate clause bars the suit. 

The petition for writ of certiorari was granted on October 30, 
1978. 

On December 14, 1978, the American Civil Liberties Union filed 
a brief as amicus curiae urging reversal. 

Twenty-nine Members of the House of Representatives and 
three employees of the House of Representatives also filed a brief 
as amicus curiae urging reversal on December 14, 1978. The Rep- 
resentatives were Morris Udall, Patricia Schroeder, Charles Rose, 
Les AuCoin, Berkley Bedell, David Bonior, William M. Brodhead, 
George E. Brown, Jr., John H. Buchanan, Jr., Yvonne Brathwaite 
Burke, Robert Carr, John Conyers, Ronald V. Dellums, Thomas 
Downey, Robert F. Drinan, Don Edwards, Dante B. Fascell, Dale 
E. Kildee, William Lehman, Edward J. Markey, George Miller, 
Anthony Moffett, Richard Nolan, Leon Panetta, D. J. Pease, Fred 
Richmond, Bruce F. Vento, Harold L. Volkmer, and Ted Weiss. 



14 

Mrs. Davis filed her brief on December 18, 1978. 

Status. — The case is pending before the U.S. Supreme Court. 

The complete text of the opinion of the Court of Appeals panel is 
printed in the ''Decisions" section of the report of Court Proceed- 
ings and Actions of Vital Interest to the Congress, Part 1, April 15, 
1977. 

The full text of the en banc opinion of the Court of Appeals panel 
is printed in the "Decisions" section of the report of Court Proceed- 
ings and Actions of Vital Interest to the Congress, Part 4, May 15, 
1978. 

McSurely v. McAdams (formerly McClellan) 

C.A. No. 516-69 (D.D.C.) 

Brief — On August 11, 1967, pursuant to warrants issued under a 
State sedition statute, Kentucky officials arrested Alan and Marga- 
ret McSurely and seized books and papers from their home. The 
McSurelys filed a complaint in the District Court for the Eastern 
District of Kentucky, challenging the constitutionality of the State 
statute. 

On September 11, 1967, the three-judge court which heard the 
case issued an order directing that: 

(1) the material seized in the raid on the McSurely home 
be left in the custody of the Kentucky Commonwealth 
Attorney, Thomas B. Ratliff; 

(2) the material be made available to the U.S. Marshal 
for the Eastern District of Kentucky; 

(3) Ratliff and the U.S. Marshal make an inventory of 
the seized material and file it with the record of the case; 
and 

(4) Ratliff return to the McSurelys such materials as he 
determined were not relevant to the investigation and 
prosecution of the McSurelys. 

That same day the McSurelys were indicted by a Kentucky 
grand jury. 

On September 14, 1967, the three-judge Federal District Court 
rendered its decision holding the Kentucky statute unconstitution- 
al and enjoining prosecution of the McSurelys. The court directed 
that Ratliff retain the seized materials "in safekeeping until final 
disposition of this case by appeal or otherwise." 

On September 25, 1967, Lavern Duffy, Assistant Counsel on the 
staff of the Permanent Investigations Subcommittee of the Senate 
Government Operations Committee, called Ratliff by phone to ask 
about the seized documents. Subsequently, on October 8, 1967, 
Committee Investigator John Brick went to Kentucky, talked with 
Ratliff and confirmed that the seized material in Ratliff s posses- 
sion contained information relating to the activities of a number of 
organizations in which the subcommittee was interested. 

Ratliff has claimed that at some point before Brick was first 
given access to the seized material, he tried unsuccessfully to con- 
tact all of the members of the three-judge court to obtain their 
concurrence in his decision to allow Brick to inspect the docu- 
ments. While he was unsuccessful in reaching two of the judges, he 



15 

has stated that he did talk to the third (Judge Moynahan). Ratliff s 
testimony at trial on his discussion with the judge implied (accord- 
ing to the opinion of the minority of the en banc Court of Appeals) 
that Judge Moynahan agreed to Brick's examining and copying the 
material. [McSurely v. McClellan, 553 F.2d 1277, 1307-1308 (D.C. 
Cir. 1976).] 

On October 12, 1967, Brick examined the material for about 4 
hours. He took notes, made copies of 234 of the documents, and 
then returned to Washington. 

On October 16th, 4 days later, Senator McClellan directed Brick 
to prepare subpoenas duces tecum for the seized material in Rat- 
liff s custody, which the Senator had determined was relevant to 
the subcommittee's investigations of an April 1967 riot in Nash- 
ville, Tennessee. The next day, Brick, who had returned to Ken- 
tucky, notified Judge Moynahan of the issuance of the Congression- 
al subpoenas before serving Ratliff, the U.S. Marshal (cocustodian 
with Ratliff of the seized materials), and the McSurelys. The next 
day the McSurelys filed motions with the three-judge court seeking 
orders blocking Ratliff from releasing the seized material to the 
subcommittee and directing him to return the materials to them 
(the McSurelys). 

On October 30, 1967, the three-judge court issued an order in 
response to the McSurelys' motions. The court overruled motions 
that the materials in Ratliff s custody be returned to the McSure- 
lys and that a restraining order be issued enjoining release of the 
materials requested "by a Committee of the United States Senate." 
Officers of the court and the parties to the action were directed "to 
cooperate with the Senate committee in making available such of 
the materials, or copies thereof, as the committee considers perti- 
nent to its inquiry * * *." [553 F.2d at 1308.] 

On November 1, 1967, a motion for reconsideration and rehear- 
ing of the October 30th order was denied. The court granted a 24- 
hour stay to allow the McSurelys to apply to the Supreme Court 
for review, and directed that pending such review the material not 
be removed from Ratliff s custody and that "copies thereof shall 
not be made on or before 2:00 p.m., Eastern Standard Time, No- 
vember 2, 1967." [553 F.2d at 1308.] 

On November 10, 1967, Mr. Justice Stewart, for the Supreme 
Court, ordered that the documents remain in their then custody 
until the three-judge court could hear and rule on the McSurelys' 
objections to the Congressional subpoenas. 

In an order issued on December 5, 1967, the three-judge court 
overruled the McSurelys' objections to the subpoenas. The court 
ordered Ratliff to comply with the Congressional subpoenas by 
allowing committee representatives to make copies of the materials 
in his possession pursuant to the court's order. A 5-day stay was 
ordered in the compliance required by the order to allow the 
McSurelys to seek Supreme Court review. 

On January 20, 1968, Mr. Justice Stewart, again speaking for the 
Supreme Court, stayed the three-judge court order "to the extent 
\™ the seized documents shall remain in custody." [390 U.S. 914 

f f u A* e stay was conditioned on the McSurelys filing an appeal 
Co rt ober 30th th ree-judge court order with the Supreme 



16 

On March 18, 1968, the Supreme Court declined to hear the case, 
dismissing the appeal in a per curiam order [390 U.S. 914 (1968)], 
but continued the stay to allow the McSurelys to apply to the Sixth 
Circuit Court of Appeals for a stay. By the time the McSurelys' 
appeal to the Sixth Circuit was taken, the time for the State to 
appeal the three-judge court's order of September 14, 1967, finding 
the Kentucky statute unconstitutional, had expired. 

In July of 1968, the Sixth Circuit decided that since time for 
appeal of the September 14th order had run, "the right of the court 
to retain possession of the seized documents, which include no 
contraband, has expired." [McSurely v. Ratliff, 398 F.2d 817, 819 
(6th Cir. 1968).] The Appeals Court ordered that the materials be 
returned to the McSurelys without prejudice to the subcommittee's 
right to proceed with the enforcement of its subpoenas: 
"[Questions [as to the subpoenas] may be adjudicated under the 
appropriate procedure for challenging subpoenas of Congressional 
Committees." [398 F.2d 818, cited in 553 F.2d at 1309.] 

On November 8, 1968, the seized materials were returned to the 
McSurelys. The McSurelys, who were immediately served with new 
subcommittee subpoenas similar to the original subcommittee sub- 
poenas, refused to comply with the new subpoenas. 

The McSurelys filed a civil action in the U.S. District Court for 
the District of Columbia on the date named in the subpoenas for 
their appearance before the subcommittee. They sought a declara- 
tion that compliance with the subpoenas was not required, a pre- 
liminary and permanent injunction against institution of criminal 
proceedings against them for their failure to comply with the sub- 
poenas, and monetary damages. 

No action had been taken in this civil suit at the time the 
McSurelys were indicted for contempt of Congress for failure to 
comply with the subpoenas. Subsequently, in their civil action, they 
filed an amended and supplemental complaint seeking only com- 
pensatory and punitive damages. The McSurelys alleged that the 
defendants, Senator McClellan, three members of the subcommit- 
tee staff, and Ratliff the Kentucky Commonwealth Attorney who 
initially seized from their home the documents which included 
those later subpoenaed by the subcommittee, entered into a con- 
spiracy to deprive them of their constitutional rights. They sought 
damages "for the unlawful seizure, inspection and appropriation of 
their personal and business papers and documents and other ob- 
jects and articles, for the issuance of subpoenas based on illegally 
obtained information and invalid on their face, for their humili- 
ation and embarrassment, mental and emotional pain, loss of em- 
ployment, disruption of personal privacy and safety caused thereby, 
all in violation and derogation of their rights under the First, 
Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitu- 
tion and the laws of the United States." [Plaintiffs Amended and 
Supplemental Complaint, at 13-14.] 

In the criminal action for contempt of Congress, the McSurelys 
were convicted and sentenced in June 1970. The convictions were 
appealed to the Court of Appeals. The decision of the Court of 
Appeals, reversing the contempt of Congress convictions of the 
McSurelys, was filed on December 20, 1972. The majority of the 
court took the position that the exclusionary rule of evidence ap- 



17 

plied to proceedings before Congressional committees as well as to 
criminal prosecutions, and therefore, the court held that the sub- 
committee's subpoenas were inadmissable as the fruit of an unlaw- 
ful search and seizure. [United States v. McSurely, 473 F.2d 1178 
(D.C. Cir. 1972).] The case was remanded to the U.S. District Court 
for the District of Columbia with instructions to enter judgments of 
acquittal in the matter of the contempt convictions. The Solicitor 
General decided not to petition the Supreme Court for a writ of 
certiorari. 

In the civil proceedings brought by the McSurelys, Chairman 
McClellan and three subcommittee staff members filed a motion to 
dismiss, or, in the alternative, for summary judgment in the Dis- 
trict Court on October 26, 1971. 

The grounds claimed in support of the motion were: 

(1) Defendants are immune from actions for damages 
where as here it is clear that their conduct was within the 
sphere of legislative activity. (2) The claimant fails to state 
a claim upon which relief can be granted against defend- 
ants who were a U.S. Senator or employees of the Senate 
of the United States at all times material to this cause. (3) 
Plaintiffs are barred by collateral estoppel from relitigat- 
ing issues previously settled by the judgment of this court 
in United States v. Alan McSurely and Margaret McSurely, 
Criminal Nos. 1376-69, 1377-69. * * * [Defendants' Motion 
to Dismiss or in the Alternative for Summary Judgment, 
at 1.] 

The motion to dismiss was denied on June 12, 1973, and after the 
motion for reconsideration was rejected, the Federal defendants 
filed notice of appeal. 

In a 2 to 1 decision on October 28, 1975, the U.S. Court of 
Appeals for the District of Columbia reversed the District Court's 
ruling and remanded the case for further action consistent with its 
holding. 

The three-judge panel of the Appeals Court held that, as a 
matter of law, the defendants were entitled to summary judgment 
on all counts of the complaint relating to the inspection by the 
committee investigator of the seized material, the transportation of 
such material to Washington by the investigator, the utilization of 
the information by the investigator as the basis for Congressional 
subpoenas, and the issuance of Contempt of Congress citations 
against the plaintiffs. 

The Appeals Court left for the District Court on remand the 
determination of whether the defendants actively collaborated in 
the original raid on the McSurelys' home and, if so, whether there 
was sufficient evidence of such collaboration to merit a trial on 
that issue. 

In addition, the Appeals Court remanded to the lower court the 
question of whether the defendants distributed copies of documents 
to individuals or agencies outside Congress — and, if so, whether 
such distribution was actionable. [McSurely v. McClellan, 521 F.2d 
1024 (D.C. Cir. 1975).] 

The McSurelys filed a petition for a rehearing by the Court of 
Appeals sitting en banc. 



18 

On December 10, 1975, the decision of the Court of Appeals was 
vacated and the petition for a rehearing en banc was granted. 

On December 21, 1976, the Court of Appeals en banc issued its 
opinion. 

A majority of the court held that as a matter of law the Federal 
defendants were entitled to summary judgment on: 

(1) allegations in the amended complaints pertaining to 
the subcommittee staffs inspection of the 234 documents 
that Brick the subcommittee investigator brought to the 
subcommittee, 

(2) the utilization of the information obtained by Brick 
as the basis for congressional subpoenas, and 

(3) the issuance of Contempt of Congress citations * * * . 

The majority further said that: "since no allegation has been 
made as to conspiracy in the original raid of the McSurley's home, 
appellants are entitled to dismissal on this point." [553 F.2d at 
1299.] 

As to the first three points the court found that the activities 
complained of were done within the legislative process and were 
protected by Speech or Debate clause immunity or legislative im- 
munity. 

Left for the District Court's consideration and initial determina- 
tion on remand were: 

(1) whether any cause of action against defendants Brick 
and Alderman survives their deaths; (2) whether Brick's 
inspection of the seized material put in Ratliff s possession 
under the three-judge court's ' "safekeeping" directive, and 
Brick's transport to Washington of copies of 234 docu- 
ments, violated the McSurelys' rights under the Fourth 
Amendment; (3) whether Brick selected and transported to 
Washington copies of documents he knew to be wholly 
unrelated to the legislative inquiry, and, if so, whether 
such conduct was actionable under the applicable law; (4) 
whether any other federal defendants acted in concert 
with Brick in action for which he enjoys no legislative 
immunity; (5) whether any of the federal defendants dis- 
tributed copies of documents in the subcommittee's posses- 
sion to individuals or agencies outside of Congress, and, if 
so, whether such distribution was actionable under the 
applicable law; and (6) other matters identified in this 
opinion as requiring further development. [553 F.2d at 
1299.] 

As to the refusal to grant summary judgment on two allegations 
relating to dissemination of some or all of the documents outside of 
the subcommittee and the Congress, the Court of Appeals found 
that such activity "is not legislative activity entitled to absolute 
immunity by force of the Speech or Debate clause, in the absence 
of a claim of legislative purpose." [553 F.2d at 1286.] 

As to the inspection and transportation by Subcommittee Investi- 
gator Brick of documents held in "safekeeping" by court order, the 
refusal of the District Court to grant summary judgment was af- 
firmed by an equally divided court. Five judges felt that on that 



19 

noint "there is evidence in the record as it presently stands, 'which 
Zf£rr\* more than merely colorable substance to the claim of an 
tauten? Fourth Amendment violation by Brick." [553 F.2d at 
1289 1 They hypothesized that the District Court's "safekeeping" 
order in effect at the time of Brick's inspection and transportation 
of the documents to Washington for the subcommittee's use pre- 
cluded Brick from having access to the documents 

Judge Wilkey, writing for himself and four other judges, disa- 
greed These judges refused to accept that Brick's inspection and 
transportation of the documents constituted an unlawful search 
and seizure under the Fourth Amendment. They said that: 

After a tangential approach to this basic underlying 
issue, the majority opinion does refer to Brick's "search- 
and-taking" (p. 30), the "search and seizure of Brick" (p. 
32), and then asserts flatly "two separate, independent 
search and seizures took place here" (p. 33). 

With this holding our colleagues make new law. The 
transfer from one investigating agency to another is not a 
"separate, independent search and seizure," and, as we 
show later, the rationale of all the Supreme Court "silver 
platter" decisions and the recent en banc specific holding 
of the Ninth Circuit in United States v. Sherwin [531 F.2d 
at 1 (9th Cir. 1976)] are directly contrary. 

New law it is, but law absolutely necessary to the major- 
ity's holding that the McSurelys' Fourth Amendment 
rights were violated here, for without an "unreasonable 
search and seizure" by the Senate aide his investigative 
activities and related acts by his superiors are admittedly 
protected by the Speech or Debate clause. [553 F.2d at 
1305.] 

These five dissenting judges felt that the majority's reading of 
the "safekeeping order" was inaccurate. The minority concluded 
that the initial District Court order did not prohibit Brick's inspec- 
tion and that subsequent orders by the District Court and eventual- 
ly the Sixth Circuit Court of Appeals at least impliedly allowed 
Brick access to the documents. 

During the course of the McSurelys' contempt trial, Brick "con- 
ceded that when 'he went to Pikeville to examine the documents in 
the Court House,' he looked through the papers and books and 
determined there were 'many' items that 'he didn't need at 
all * * *'." [553 F.2d at 1294-1295.] The majority noted: "The fact 
that Brick took and transported concededly extraneous material — 
and it is significant that he seized 'some personal letters' — takes 
this case outside the protection of legislative immunity." [553 F.2d 
at 1295.] On this point the majority concluded: "Brick's testimony 
at the contempt trial ultimately may be explained away to the 
satisfaction of a jury. But it is plainly sufficient to preclude an 
automatic dismissal of the lawsuit at the threshold, on the basis of 
legislative immunity." [553 F.2d at 1296.] 

To this majority conclusion the minority responded: 

The majority holds that even if Brick did not violate the 
Fourth Amendment in his "search and seizure" he may 



20 

have violated the right of privacy of the McSurelys by 
taking private letters he believed to be irrelevant. 

The most simple and complete answer to the majority's 
position, which does not necessitate evaluating the facts as 
to relevance or irrelevancy, is to point out the clear law in 
the Supreme Court that, absent an illegal search and seiz- 
ure by Brick, the charge of invasion of privacy does not 
state a cause of action under the Constitution. Since the 
McSurelys' amended complaint does not allege any inva- 
sion of privacy on a statutory or common law basis, this 
cause of action should be dismissed if there has been no 
Fourth Amendment offense. 

If undertaken without relevance to his official inquiry, 
Brick's inspection and copying of the private papers of 
Mrs. McSurely may amount to a cause of action at 
common law for "intrusion" upon her privacy. McSurleys' 
amended complaint, however, does not allege any such 
common law or statutory violation, but alleges rather a 
violation of the Fifth Amendment, which, of course, pro- 
tects each person from deprivation by a federal official of 
life, liberty or property, without due process of law. Pre- 
sumably, the McSurelys are alleging that Brick impaired 
the privacy interest that is implicit in the "liberty" pro- 
tected by due process. 

Does the Fifth Amendment provide liability under 
[Bivens v. Six Unknown Agents of Federal Bureau of Nar- 
cotics, 403 U.S. 388 (1971)] against federal officers for what 
amount to common law torts? The Supreme Court appears 
to have answered that question in the negative in the 
recent case of Paul v. Davis [424 U.S. 693 (1976)]. [553 F.2d 
at 1326.] 

Turning to the question of whether the documents selected and 
transported by Brick, "were needed by him for the performance of 
his duties," the minority attacked the majority's conclusion that 
the documents were irrelevant. While the minority agreed that 
Brick had conceded that some of the documents might have been 
irrelevant to the committee's inquiry, it stated: "This [the majority] 
decision still amounts to 'second guessing' the legislative process 
since it overrides an independent estimate of relevance that could 
be 'plausibly interposed,' and it appears to override a judgment of 
relevance inferable from the subpeonas [which were subsequently 
issued by the Committee]." [553 F.2d at 1328.] The minority further 
noted that the documents which were purported to be irrelevant 
may in fact have been relevant to the committee's investigation. 
The Senate investigator was required to take such documents to 
the committee for its determination of relevance since "[t]he Sena- 
tors or others on the staff may easily have seen something of 
significance in any one of these letters, definitely relevant to the 
inquiry of the committee, which might have escaped the knowledge 
or attention of Brick." [553 F.2d at 1328.] 

The minority continued: 

Without deigning to give any reasons therefore, the ma- 
jority blandly treats the Senate investigator Brick's testi- 



21 

mony that he did not "need that letter signed [sic] Dearest 
Cucumber" as a final irrevocable concession binding on 
the Senate Committee and this court that this particular 
letter (and all other letters similarily characterized by the 
McSurelys) were totally irrelevant to the Senate inquiry. 
This is a rather astonishing assumption. 

In the first place, Brick's testimony was only an expres- 
sion of his own need for the letter, not that of the Commit- 
tee's. Brick had read the letter and presumably remem- 
bered any important features of its contents. Neither 
Chairman McClellan nor Brick's staff superiors had seen 
the letter and had had the opportunity to evaluate its 
contents. 

Secondly, we are at a total loss to understand by what 
principle of law it can be held that a subordinate Senate 
Committee staff member can bind the Senate Committee, 
or indeed this court, on the question of relevance. Surely 
the determination of the relevance of any of the docu- 
ments which Brick had inspected was for the Senate Com- 
mittee, or under its usual operating procedures, for the 
Committee Chairman. The agreed facts are that "on Octo- 
ber 16, 1967, at the personal direction of Senator John L. 
McClellan, he prepared the subpoenas involved herein." 
Brick took the subpoenas to McClellan, "with whom he 
had conferred on the subject matter thereof since October 
6, 1967," and McClellan signed the four subpoenas, two of 
which were directed to the McSurelys. This action of the 
Senate Committee Chairman, after a review of the copies 
of the documents brought back by Brick, evidenced the 
Committee Chairman's determination of what he thought 
was relevant for the Senate's inquiry, i.e., the 234 docu- 
ments. What Brick said he himself "needed for the per- 
formance of [his] duties" is of little importance in deter- 
mining what the Senate Subcommittee might reasonably 
find relevant for its inquiries. 

We would hold that, relevant or irrelevant, the Senate 
investigator's actions in regard to the allegedly personal 
letters of the McSurelys are in no way a ground for a 
claim of constitutional significance, as the Supreme Court 
held in Paul v. Davis, supra, and since the McSurelys have 
alleged no other type claim on this basis, their action on 
this point should be dismissed. [553 F.2d at 1330-1331 (foot- 
notes omitted).] 

In its conclusion, the minority objected strenuously to the major- 
ity's decision to remand the case to the District Court for further 
consideration of some of the actions taken by the Congressional 
defendants. The court noted: 

The purpose of an absolute immunity is to cut off claims 
against protected parties at the outset. To be true to this 
purpose, a court should make every effort to determine if a 
claim is inside or outside the protection of the Speech or 
Debate clause. A remand for further factual proceedings 
on the issue of absolute immunity itself should be required 



22 

only in the case of clear need. Otherwise the "mini-trial" 
that the defendant is forced to undergo constitutes an 
erosion of the principle of absolute immunity. The major- 
ity is engaging in such an erosion of the Speech or Debate 
clause here. 

The uncontroverted facts of this case, the logic of the 
Fourth Amendment, and the available case law support 
our conclusion here that the inspections and copying by 
Brick did not amount to an unreasonable search and seiz- 
ure. Not only does the majority err in its contrary conclu- 
sions, but it abrogates its duty in deciding absolute immu- 
nity by calling for a remand. [553 F.2d at 1332-1333.] 

In a separate dissent, Judge Danaher, writing for himself and 
three other judges, concurred in Judge Wilkey's opinion, but also 
expressed a general dissent from those portions of the majority's 
opinion which did not provide for complete dismissal of the com- 
plaint. He stated that: 

A Subcommittee of the U.S. Senate was engaged in the 
truthfinding process which it had been commanded to ex- 
ecute. So it is that the Chairman of that Subcommittee 
and the members of its staff, under the circumstances 
here, should be entitled to absolute immunity. 

It is respectfully submitted that this case should be re- 
manded to the District Court with directions to dismiss the 
complaint. [553 F.2d at 1339.] 

On May 19, 1977, the defendants filed a petition for a writ of 
certiorari with the U.S. Supreme Court. 

On October 11, 1977, the petition for a writ of certiorari was 
granted. 

Herbert H. McAdams, executor of the estate of the deceased 
Senator McClellan, was substituted for him as party petitioner on 
January 23, 1978. 

The petition was argued before the Supreme Court on March 1, 
1978. 

In a one-sentence per curiam opinion, the writ of certiorari was 
dismissed as improvidently granted on June 26, 1978. 

On August 31, 1978, Herbert H. McAdams II, executor of Senator 
McClellan's will, was substituted, by order of the District Court, as 
defendant in lieu of John L. McClellan, without prejudice to his 
right to claim that plaintiffs cause of action did not survive the 
death of Senator McClellan. 

On September 15, 1978, the McSurely's filed, in the District 
Court, a motion for an order to show cause and for a stay, in order 
to restrain Mr. McAdams from proceeding further in the Probate 
Court of Pulaski County, Arkansas, where he had filed a petition 
seeking a declaration that the McSurely's claim against Senator 
McClellan's estate be rejected for failure to comply with a filing 
provision of Arkansas probate law, or alternatively, that the maxi- 
mum liability and reserve for the contingency of the claim be fixed 
and that any distribution be made without personal liability of the 
executor. The stay was denied on the same day by District Judge 
Gasch. 



23 

On September 18, 1978, the McSurely's filed a notice of appeal 
from the order denying the stay and also filed, in the U.S. Court 
of Appeals for the District of Columbia Circuit, motions for emer- 
gency relief by way of a stay pending appeal and for expedited 
consideration of the motion for emergency relief. (78-1916, D.C. 
Cir.). The motion for emergency relief was denied on November 
13, 1978. On November 22, 1978, a stipulation and agreement for 
voluntary dismissal of the appeal was filed and the appeal was 
dismissed. 

Status.— The case is pending in the U.S. District Court for the 
District of Columbia. 

The full text of the decision of the Court of Appeals in the 
criminal action for contempt of Congress was printed in the ''Deci- 
sions" section of the report of Court Proceedings and Actions of 
Vital Interest to the Congress, December 1972. 

The full text of the decision of October 28, 1975, of the Court of 
Appeals was printed in the "Decisions" section of the report of 
Court Proceedings and Actions of Vital Interest to the Congress, 
December 31, 1975. 

The full text of the decision of December 21, 1976, of the Court of 
Appeals en banc was printed in the "Decisions" section of the 
report of Court Proceedings and Actions of Vital Interest to the 
Congress, December 1976. 

Hutchinson v. Proxmire 

No. 78-680 (U.S. Supreme Court) 

Brief— On April 18, 1975, Senator William Proxmire, Chairman 
of the Subcommittee on Housing and Urban Development and 
Independent Agencies of the Senate Appropriations Committee, 
which has jurisdiction over funds for the National Science Founda- 
tion, the National Aeronautics and Space Administration, and the 
Office of Naval Research, made a statement on the floor of the 
Senate relating to certain research contracts awarded by those 
agencies to Dr. Ronald R. Hutchinson, a Michigan research scien- 
tist. A press release which consisted almost entirely of quotations 
frorn the Senator's floor statement was authorized by Senator Prox- 
mire's office and issued by the Senate Service Department, and at 
about the same time, Morton Schwartz, an aide to Senator Prox- 
mire, allegedly telephoned various Federal agencies in an attempt 
to persuade those agencies to terminate grants or contracts for 
research being performed by Dr. Hutchinson. Senator Proxmire 
appeared, 7 months later, on a nationally syndicated television 
show. During that appearance Senator Proxmire made statements 
regarding the expenditure of Federal funds for study of certain 
f^ PeCt u °*"- t ^ ie Denav i° r °f monkeys, rats, and human beings. [Al- 
though this was Dr. Hutchinson's project, he was not mentioned by 
na ™ e during Senator Proxmire's appearance.] 

On April 15, 1976, Dr. Hutchinson filed a $6 million slander and 
nbel action in the U.S. District Court for the Western District of 
Wisconsin against Senator Proxmire and his aide alleging that 
tney maliciously and with knowledge of the consequences of their 
conduct interfered with the numerous valid contractual relation- 
snips that the plaintiff had with the supporters of his research." 



24 

Dr. Hutchinson's complaint seeks relief based on the statements 
made in the press release, on the television show, and by Mr. 
Schwartz over the telephone to the various Federal agencies. 

The defendants filed a motion with the court on June 10, 1976, to 
have the case transferred to the District of Columbia. 

On June 11, 1976, the court issued an order by U.S. District 
Court Judge Doyle in which he disqualified himself from the 
action. The case was transferred to the Northern District of Illi- 
nois, since Judge Doyle was the only judge in the Western District 
of Wisconsin. The case was still docketed in the Wisconsin court, 
however, and was handled as if it were there. 

Senator Proxmire filed a motion to dismiss or, alternatively, for 
summary judgment on July 9. In it he claimed: (1) that the alleged 
misconduct was legitimate legislative activity and, accordingly, ab- 
solutely privileged; (2) that his statements and inquiries about the 
use of public funds were privileged; and (3) that there is no factual 
basis which will support a finding for the plaintiff. 

On December 23, 1976, the court granted defendants' motion for 
summary judgment, with a written opinion to be issued by January 
23, 1977. Subsequently the court extended until April 27, 1977, the 
date for filing its memorandum. 

On April 22, 1977, the court issued its opinion. It concluded that 
in order to determine whether Senator Proxmire should be granted 
summary judgment three issues had to be resolved: 

(1) Whether the investigative activities of a Senator in 
connection with the duties as a Member of Senate subcom- 
mittees were privileged. 

(2) Whether a press release issued by the United States 
Senate Service Department and containing the Substance 
of a Senate floor speech by the United States Senator was 
privileged under the Speech or Debate clause of the 
United States Constitution; 

(3) Whether the statements made by the United States 
Senator to his constituents and in a television appearance 
were libelous or defamatory. [Slip Opinion at 2.] 

For purposes of determining the applicability of Speech or 
Debate clause immunity to the allegations in the complaint the 
court divided the actions of Senator Proxmire and Mr. Schwartz 
into four phases: 

(1) investigation into Federal funding of Dr. Hutchinson's re- 
search; 

(2) delivery of a speech on the Senate floor by the Senator and 
issuance of a press release reciting the facts and content of the 
Senate speech; 

(3) followup investigation by the Senator and his staff at appro- 
priation hearings; and 

(4) the Senator's statement on the Mike Douglas Show, his news- 
letter to constituents, and his other comments about the plaintiff. 

Citing Eastland v. United States Servicemen's Fund, 421 U.S. 491, 
503 (1975) and Doe v. McMillan, 412 U.S. 306, 314 (1973), the court 
stated that: 

The standard for involving congressional immunity under 
article L section 6 of the Constitution is the standard of 



25 

legitimate legislative activity. In the event of a suit, once 
it is determined that the conduct complained of meets that 
standard, the action must be dismissed. [Slip Opinion at 
13.] 

While noting that " considerable confusion exists as to what con- 
stitutes legitimate legislative activity," the court concluded that as 
to the aspects of the case related to the investigations conducted by 
Senator Proxmire and his staff: 

In this case, Senator Proxmire serves on several subcom- 
mittees of the Senate Committee on Appropriations. These 
subcommittees review the budgets of the various agencies 
with which Dr. Hutchinson has contracted. As a member 
of these subcommittees, Senator Proxmire votes on appro- 
priations, makes recommendations regarding the distribu- 
tion of government funds, and concerns himself with their 
expenditure. Therefore, his inquiries, and those of his ad- 
ministrative assistant, into how American taxpayers' 
moneys are spent by the agencies over which the subcom- 
mittees in question had jurisdiction were privileged as le- 
gitimate legislative activity under the Kilbourn test [Kil- 
bourn v. Thompson, 103 U.S. 168 (1881)] of "things general- 
ly done in a session of the House by one of its members in 
relation to the business before it." [Slip Opinion at 14.] 

Addressing the problems of the speech on the floor of the Senate 
and the authorization of the press release the court concluded that 
in both instances Senator Proxmire was protected by Speech or 
Debate clause immunity. 

In regard to the press release, the court found Senator Prox- 
mire's contention that his authorization of the press release was 
entitled to immunity as an exercise of the "informing function" to 
be compatible with the U.S. Supreme Court's holdings in Doe and 
Gravel v. United States, 408 U.S. 606 (1972). In support of this view 
the court noted the existence of the franking statute, 39 U.S.C. 
§ 3210 (1970), which "promotes the 'informing function' by authoriz- 
ing free use of the mails" and cited two lower court cases dealing 
with the use of the frank as an exercise of the "informing func- 
tion." Hoellen v. Annunzio, 348 F. Supp. 305 (N.D. 111. 1972), affd 
468 F.2d 522 (7th Cir. 1972), cert, denied, 412 U.S. 953 (1973) and 
Bowie v. Williams, 351 F. Supp. 628 (E.D. Pa. 1972). The court 
stated that: "that press release, in a constitutional sense, was no 
different than would have been a television or radio broadcast of 
his speech from the Senate floor." [Slip Opinion at 22.] 

As to the remaining issue of whether Senator Proxmire's state- 
ment on the Mike Douglas Show, his references in his newsletter to 
Dr. Hutchinson's research and his comments to news reporters and 
in interviews either mentioning Dr. Hutchinson by name or merely 
alluding to the Doctor's work were libelous or defamatory, the 
court concluded they were not. 

The court first found that Dr. Hutchinson was, for purposes of 
the suit, both a "public figure" and a "public official." Thus, for the 
plaintiff to recover, it must be found that not only did Senator 
Proxmire publish a defamatory falsehood about him, but also that 
the publication was made with actual malice; that is, actual knowl- 



26 

edge of falsity or reckless disregard of the truth (New York Times 
Co. v. Sullivan, 376 U.S. 254, 279-280 (1964)). 

The court concluded that none of Senator Proxmire's statements 
met the threshold requirements set forth in the New York Times 
case. 

The court next noted that: Even if for the purpose of this suit it 
is found that Dr. Hutchinson is a private person so that First 
Amendment protections do not extend to Senator Proxmire and his 
administrative assistants, relevant State law dictates the grant of 
summary judgment. Although the court was not certain which 
State's law would be appropriately applicable to this case, the 
District of Columbia's ("the place where the defendants work and 
their allegedly wrongful conduct originated" [Slip Opinion at 34] or 
Michigan's ("the plaintiffs domicile where the inquiry presumably 
had effect" [Slip Opinion at 34]), it concluded that by applying the 
relevant law of either jurisdiction Dr. Hutchinson would be unable 
to recover in this action. 

The court then granted Senator Proxmire's motion for summary 
judgment. Additionally, the court stated that unless the plaintiff 
could show why it should not so order, it would within 30 days 
dismiss the complaint against Mr. Schwartz. 

On May 20, 1977, Dr. Hutchinson filed notice of appeal. On June 
22, 1977, the District Court dismissed the complaint against Mr. 
Schwartz. The appeals were consolidated on July 29, 1977. 

The appeals were argued on January 9, 1978. 

The U.S. Court of Appeals for the Seventh Circuit issued its 
opinion on June 30, 1978, affirming the judgment of the District 
Court. Senior Circuit Judge Castle, writing for the court, described 
the issues on appeal as whether the alleged acts complained of are 
within the legitimate legislative sphere and hence absolutely 
immune from suit and, to the extent not so immune, whether they 
are protected by the qualified privilege of the First Amendment. 

In analyzing the question of the possible applicability of absolute 
legislative immunity under the Speech or Debate clause, the court 
divided the allegations of the plaintiff into four parts: (1) the fol- 
lowup telephone calls to administrative agencies; (2) the press re- 
lease of the speech; (3) the newsletters; and (4) the television, radio, 
and other interviews. 

In considering the phone calls to NSF, NASA, and NIDA, the 
court relied upon Gravel v. United States, 408 U.S. 606 (1978), 
McSurely v. McClellan, 553 F.2d 1277 (D.C. Cir. 1976) (en banc), 
cert, dismissed as improvidently granted sub nom., McAdams v. 
McSurely, 438 U.S. 189 (1978), and especially United States v. John- 
son, 383 U.S. 169 (1966). Specifically, the court held that: 

[W]hile there may be cases where the postinvestigation 
contact with administrative agencies is so integral to the 
investigation or other protected activities that application 
of absolute immunity would be compelled, the phone calls 
to NSF, NASA, and NIDA in this case cannot be accorded 
Speech or Debate protection. 9 



•The District Court did not specifically address the Speech or Debate 
status of the followup phone calls. It appears, however, that the court 
below viewed these actions as merely a part of the total investigation and 



27 

therefore absolutely privileged. 431 F. Supp. at 1321-22. In light of the 
language in Gravel, we must disagree. 

S?pS«l^i J wa8 held to be protected L by Speech or Debate 
clause immunity. In reaching this holding, the court relied upon 
t£ standard put forth in Doe v. McMillan, 412 : U.S .306 (1973), 
wherein the Supreme Court held that the availability of legislative 
immunitv in a situation where distribution of information outside 
Congress has occurred depends upon whether the "legitimate legis- 
lative needs" of Congress have been exceeded. Regarding the press 
release in the instant case, Judge Castle's opinion stated: 

Given the enormous amount of material addressed by Con- 
gress each day, strategic press releases may serve to alert 
a representative's colleagues about a matter of particular 
importance as well as to inform the appropriate Federal 
agencies and the public who can then comment on proper 
legislative action. We find the limited facilitation of press 
coverage of congressional action in this case to be protect- 
ed by the Speech or Debate Clause. [Slip Opinion at 9.] 

The Court of Appeals also found the newsletters mailed to Sena- 
tor Proxmire's constituents to be protected by the Speech or Debate 
clause, stating that: 

If the informing function, even though limited, is to be 
accorded any absolute immunity, it must be in a case such 
as this. Senator Proxmire's newsletter informed his con- 
stituents of his particular responsibilities as a member of 
the Senate Committee on Appropriations. Denying a repre- 
sentative protection for newsletters to his constituents in 
circumstances such as this would effectively isolate the 
legislator from the people who elected him. [Slip Opinion 
at 10.] 

Any defamatory remarks which may have been made by Senator 
Proxmire in television, radio or other interviews, however, were 
found by the court to be unprotected by the Speech or Debate 
clause. Absent special circumstances, the court held, public dis- 
semination of information in such manner must be viewed as too 
far removed from serving legitimate legislative needs, since such 
methods are not generally necessary to the carrying out of a legis- 
lator's informing function and are more often used for political 
purposes. 

Having found the telephone calls to administrative agencies and 
the interviews to be unprotected by the Speech or Debate clause, 
the court then considered whether the statements made in those 
communications were protected by the qualified privilege provided 
by the First Amendment right to free speech. The opinion of the 
Court of Appeals did not reach the issue of whether the statements, 
if unprotected, would constitute defamation under the applicable 
local law, since it went no further than to agree with the District 
Court that summary judgment on First Amendment grounds was 
proper. Dr. Hutchinson was correctly found by the District Court to 
be a public figure and hence, Judge Castle stated he would have to 
show that the statements were made with "actual malice," that is, 



28 

with actual knowledge that the statements were false or with 
reckless disregard for their truth or falsity, in order to disallow the 
qualified protection of the First Amendment. The District Court 
was held to have correctly found that Dr. Hutchinson had shown 
neither of these things. 

Finally, the court rejected Dr. Hutchinson's contention that, even 
if the defendants are shielded by the First Amendment from liabili- 
ty for defamation, the District Court erred in not allowing a trial of 
the other claims made in the complaint, interference with contrac- 
tual relations, intentional infliction of emotional anguish, and inva- 
sion of privacy. The Court of Appeals saw these as no more than 
the results of defendant's statements, which must be privileged if 
the statements themselves are privileged, since to hold otherwise 
would defeat the privilege of the statements. 

A petition for rehearing was filed on July 14, 1978, and denied on 
July 26, 1978. 

Dr. Hutchinson filed a petition for writ of certiorari in the 
United States Supreme Court on October 20, 1978. As enumerated 
in his petition, the issues presented are: (1) whether statements 
made in press releases and newsletters are protected under the 
Speech or Debate clause; (2) whether he is a "public figure" 
within the meaning of Gertz v. Robert Welch, Inc., 418 U.S. 323 
(1974); and (3) whether there is a genuine issue of fact as to the 
issue of malice. 

Senator Proxmire and Mr. Schwartz filed a brief in opposition 
to Dr. Hutchinson's petition on November 22, 1978. In their brief, 
they argued that the Court of Appeals had properly decided the 
Speech or Debate issue and was correct in finding their actions 
privileged under the First Amendment, in finding Dr. Hutchinson 
to be a public figure, and in finding an absence of actual malice 
in the record. 

Status. — The petition for writ of certiorari is pending before the 
Supreme Court. 

The decision of the United States District Court for the Northern 
District of Illinois is printed in the "Decisions" section of Court 
Proceedings and Actions of Vital Interest to the Congress, Part 2, 
August 15, 1977. 

The opinion of the Court of Appeals is printed in the "Decisions" 
section of Court Proceedings and Actions of Vital Interest to the 
Congress, Part 5, September 15, 1978. 

United States v. Helstoski 

No. 78-349 (U.S. Supreme Court) 
and, 
Helstoski v. Meanor 

No. 78-546 (U.S. Supreme Court) 

Brief— On June 2, 1976, then-Representative Henry Helstoski 
was indicted by a grand jury on three counts of soliciting and 
accepting bribes from Chilean and Argentinean aliens in exchange 
for introducing private citizenship bills in Congress, with the intent 
of delaying the aliens' deportation. The indictment also included 



29 

three counts of conspiracy and obstruction of justice and four 
counts of lying to a Federal grand jury. Indicted with Mr. Helstoski 
were two members of his Congressional district staff and the trea- 
surer of his reelection committee. 

Before trial was scheduled to begin on 8 counts of a 12-count 
indictment, Mr. Helstoski moved to dismiss the first 4 counts. His 
dismissal motion was predicated upon the Speech or Debate clause, 
Article I, Section 6 of the U.S. Constitution. As enunciated by the 
court, in its opinion filed on February 18, 1977, "The defendant's 
position is that since the Speech or Debate clause precludes inquiry 
by a grand jury into the performance of his legislative acts, and 
since the grand jury obviously made such an inquiry, the implicat- 
ed counts of the indictment are vitiated." [United States v. Hel- 
stoski, Criminal Action No. 76-201 (D.N.J.); Slip Opinion at 2.] 

The Government opposed the dismissal motion asserting that an 
indictment, valid on its face, may not be attacked on the ground 
that incompetent or privileged evidence was presented to the in- 
dicting grand jury. Alternatively, the Government argued that the 
voluntary testimony about legislative activity given by the defend- 
ant to the grand jury and during a prior trial of another individu- 
al, alleged in the contested indictment to be a coconspirator of the 
defendant, constituted a waiver of Speech or Debate clause rights. 
Such waiver, the Government further argued, precluded Mr. Hel- 
stoski from attacking the validity of the indictment and ' 'renders 
evidence of his legislative acts admissible at trial for the purpose of 
establishing his guilt." [Slip Opinion at 2-3.] 

As to Mr. Helstoski's motion to dismiss four counts of the indict- 
ment, the court concluded that such dismissal was not required. 

The court noted: 

Defendant Helstoski's contention that Counts I through 
IV of the indictment must be dismissed because the indict- 
ing grand jury heard evidence regarding his legislative 
acts is untenable. United States v. Johnson, 419 F.2d 56 
(4th Cir. 1969). This is not because there is any question 
that a Member of Congress may not be called to answer 
for his legislative acts before a grand jury, Gravel v. 
United States, 408 U.S. 606 (1972), but because courts 
simply will not go behind the face of an indictment, once it 
is returned, in order to test the competency of the evidence 
adduced before the grand jury. United States v. Calandra, 
414 U.S. 338 (1974); Lawn v. United States, 355 U.S. 339 
(1958); Costello v. United States, 350 U.S. 359 (1956); Holt v. 
United States, 218 U.S. 245 (1910); United States v. Blue, 
384 U.S. 251, 255 n.3 (1966) (dictum). This rule governs 
whether the evidence before the grand jury is attacked on 
the ground it is hearsay, United States v. Costello, supra, 
or on the ground the evidence was obtained and set before 
the grand jury in violation of the Constitution, United 
States v. Calandra, supra; Holt v. United States, supra; 
United States v. Blue, supra. [Slip Opinion at 3.] 

As to Mr. Helstoski's assertion that the four counts of the indict- 
ment should be thrown out because of their "express reference" to 
his legislative actions, the court, relying on Supreme Court deci- 



30 

sions in United States v. Johnson, 383 U.S. 169 (1966), and United 
States v. Brewster, 408 U.S. 501 (1972), declared that the counts 
involved did not violate the Speech or Debate clause "merely be- 
cause they make reference to alleged legislative acts of defendant 
Helstoski." [Slip Opinion at 8.] 

While the court concluded that presentation of such material to 
the grand jury was not a proper basis for dismissing the indict- 
ment, it nonetheless rejected the Government's contention that Mr. 
Helstoski's pretrial testimony waived the Speech or Debate clause 
protection to which he was entitled at trial. 

On this point the court stated: 

[T]he purpose of the Speech or Debate Clause is to insu- 
late the independent activities of the legislature from ex- 
ecutive and judicial interference. This purpose can be 
achieved only if the executive is barred from utilizing 
evidence of legislative acts, and if the judiciary refuses to 
receive evidence of such acts, in a criminal prosecution of 
a legislator. I therefore believe that what the Speech or 
Debate Clause does is to erect an absolute constitutional 
immunity in favor of a member of Congress from having 
evidence of his legislative acts used in litigation against 
his interests. I am not certain whether a member of Con- 
gress has the power to waive this immunity. But I am 
certain that if such power exists, it is consistent with the 
consitutional obligation of the judiciary to eschew interfer- 
ence with the legislature that the courts employ a strin- 
gent test before finding such a waiver in a given case. A 
waiver of the Speech or Debate immunity ought not be 
found by implication. Such a waiver may be found only 
where it has been clearly demonstrated that a legislator 
has expressly waived his Speech or Debate immunity for 
the precise purpose for which the Government seeks to use 
evidence of his legislative acts. A less stringent standard 
would vitiate the prophylactic purpose underlying the 
Speech or Debate Clause. It is clear that by the above 
standard, Helstoski has not waived his Speech or Debate 
immunity from having evidence of his prior legislative acts 
used against him in the instant criminal prosecution. Ac- 
cordingly, such evidence may not be admitted at trial on 
the ground of waiver. [Slip Opinion at 16-17.] 

Turning to the Government's motion seeking a pretrial ruling on 
the admissibility of evidence the court stated the general proposi- 
tion that: 

[I]t is clear that the Speech or Debate Clause creates no 
impediment to the introduction of evidence of an agree- 
ment by Helstoski to perform in futuro a legislative act. 
What is forbidden is the introduction of evidence of his 
past performance of such an act. [Slip Opinion at 17.] 

As to Mr. Helstoski's particular situation the court noted: 

The Government argues, however, that Helstoski's state- 
ments, both verbally and in writing, referring to the intro- 
duction of private immigration bills, do not constitute leg- 



31 

islative acts and thus may be admitted. The argument is 
beside the point. The offered evidence contains reference 
to Helstoski's past performance of a legislative act, and the 
Speech or Debate Clause forbids use of such evidence 
during the Government's case-in-chief. The same is true of 
the thesis that Helstoski's statements reciting the past 
performance of a legislative act may be used, not to cor- 
roborate the existence of a bribe, but on issues such as 
motive, intent, knowlege and the like. This ignores the 
absolute command of the Speech or Debate Clause as con- 
strued and applied in Johnson and Brewster. The clause 
does not say that evidence of a legislator's past perform- 
ance of a legislative act may be used against him for some 
purpose but not others. It is, rather, that such evidence 
may not be used at all. If the Government, for whatever 
reason cannot prove its case without reference to Helstos- 
ki's past performance of a legislative act, then the prosecu- 
tion will have to be foregone. [Slip Opinion at 17-18.] 

The court concluded its opinion with a brief discussion of the 
constitutional power of the House and Senate to " Determine the 
Rules of Its Proceedings, punish its Members for Disorderly Behav- 
ior, and with the Concurrence of two-thirds, expel a Member." 
[U.S. Constitution, Article I, Section 5, clause 2.] 

This power, the court declared would be an appropriate remedy 
for those actions of Members of Congress "where it is necessary to 
call into question their legislative acts in order to impose [punish- 
ment]." [Slip Opinion at 18.] 

Reading the rulemaking and enforcement powers and the Speech 
or Debate Clause together the court concluded that: 

The Speech or Debate Clause expressly permits a 
member to be called into question before the House on 
account of his performance of a legislative act. If the 
House does not exercise the power conferred by the Consti- 
tution to discipline its own members, such a failure pro- 
vides no basis for the executive and the judiciary to inter- 
fere, ignore the Constitution, and violate the doctrine of 
separation of powers. [Slip Opinion at 19.] 

On March 18, 1977, the Government filed a notice of appeal. 

On June 6, 1977, the court granted Mr. Helstoski's motion to 
have the Government's brief and appendix suppressed and ordered 
the brief and appendix resubmitted so that matters not properly 
subject to a disclosure at that time might be filed in camera. Mr. 
Helstoski filed a petition for writ of mandamus / prohibition on 
June 17, 1977, in the Court of Appeals, asserting again that the 
indictment violated the Speech or Debate Clause. [Helstoski v. 

A B t StateS ' No ' 77 - 1800 < 3d - Cir -)-] 0n June 28 > 1977 > the Petition 
and the appeal were consolidated for purposes of argument and for 
disposition on the merits. 

On October 6, 1977, the appeal and the petition were argued 
? A 6 * thre e-judge panel of the United States Court of Appeals 
for the Third Circuit. 



32 

On April 13, 1978, the Court of Appeals, in an opinion written by 
Chief Judge Seitz, denied defendant's petition for writ of manda- 
mus and affirmed the judgment of the District Court. 

The opinion dealt first with the petition for writ of mandamus. 
In describing the writ of mandamus, the court noted: 

The Supreme Court recently has emphasized that, in 
determining when it is ' 'appropriate" to issue the writ we 
must keep in mind that "[t]he remedy of mandamus is a 
drastic one, to be invoked only in extraordinary situa- 
tions." Kerr v. United States District Court, 426 U.S. 394, 
402 (1976). 

Generally, Federal courts have used the writ "to confine 
an inferior court to a lawful exercise of its prescribed 
jurisdiction or to compel it to exercise its authority when 
it is its duty to do so." Roche v. Evaporated Milk Associ- 
ation, 319 U.S. 21, 26 (1943), quoted in Kerr v. United 
States District Court, 426 U.S. 394, 402 (1976). And while 
the Supreme Court in Kerr noted that it had "not limited 
the use of mandamus by an unduly narrow and technical 
understanding of what constitutes a matter of 'jurisdic- 
tion,' " the Court stressed that the writ should issue only 
in extraordinary situations: "the fact still remains that 
'only exceptional circumstances amounting to a judicial 
"usurpation of power" will justify the invocation of this 
extraordinary remedy.' " Kerr v. United States District 
Court, 426 U.S. 394, 402 (1976), quoting Will v. United 
States, 389, U.S. 90, 95 (1967). 

In order to further the congressional determination that 
appellate review should come only after final judgment 
except in the most exceptional circumstances, the courts 
also have required that even where circumstances amount 
to a "judicial usurpation of power," the petitioner must 
satisfy certain other conditions for issuance of the writ. 
Thus, the party seeking the writ must have no other ade- 
quate means to attain the relief he seeks. And petitioner 
must also show that his right to issuance of the writ is 
clear and indisputable. Id. at 403. 

Finally, "it is important to remember that issuance of 
the writ is in large part a matter of discretion with the 
court to which the petition is addressed." [Slip Opinion at 
9-10.] 

Mr. Helstoski's argument that the District Court was without 
jurisdiction to try him, because the indictment charged him with 
legislative acts and so violated the Speech or Debate clause privi- 
lege, was rejected by the court. In refuting the argument, the court 
held that the indictment was not materially distinguishable from 
that upheld by the Supreme Court in United States v. Brewster, 408 
U.S. 501 (1972). The Court of Appeals noted that since the allega- 
tions of the indictment charged a crime even without reference to 
any acts protected from inquiry under the Speech or Debate clause, 
Mr. Helstoski had not made sufficient showing to justify issuance 
of the writ on Speech or Debate grounds. The opinion stated that, 
in so holding, no opinion was expressed as to whether, or in what 



33 

circumstances, mandamus might be appropriate to prevent trial of 
an indictment which depended upon proof of materials embraced 
by the Speech or Debate clause. 

Also rejected was the assertion by Mr. Helstoski that the District 
Court's order prohibiting the introduction at trial of any evidence 
by the Government of past legislative acts was an attempt by that 
court to obtain jurisdiction over an indictment otherwise invalid 
under the Speech or Debate clause. By modifying the proof to be 
presented at trial, Mr. Helstoski charged, the District Court had 
"constructively amended" the indictment, thereby depriving him of 
his Fifth Amendment right to be tried only upon the indictment of 
a grand jury. The Court of Appeals concluded that since a prima 
facie case may be established under 18 U.S.C. § 201(c) without any 
showing of legislative acts by the defendant, as Brewster made 
clear, the District Court's evidentiary limitation did not modify the 
proof of an essential element of the offense from that found by the 
grand jury. Hence, the order in question did not constitute a "con- 
structive amendment" of the indictment changing the basic theory 
of the offense or the facts considered by the grand jury. 

The court specifically declared that it expressed no opinion as to 
whether, or in what circumstances the "constructive amendment" 
of an indictment might justify issuance of a writ of mandamus. 

Mr. Helstoski, in seeking the writ of mandamus, had also argued 
that presentation to the grand jury of evidence of his legislative 
acts produced an indictment beyond the grand jury's power to 
return, and beyond the court's jurisdiction to try. The Court of 
Appeals held that the indictment charges an offense for which Mr. 
Helstoski may be tried without violation of the Speech or Debate 
clause, and the indictment is valid on its face. The Appeals Court 
thus concluded that: 

Even in light of the expansive definition of "jurisdiction" 
that the Supreme Court has adopted in evaluating manda- 
mus petitions, we do not believe that in these circum- 
stances defendant's allegations concerning the grand jury 
make out " 'exceptional circumstances amounting to a judi- 
cial "usurpation of power" [so as to] justify the invocation 
of this extraordinary remedy.' "Kerr v. United States Dis- 
trict Court, 426 U.S. 394, 402 (1976), quoting Will v. United 
States, 389 U.S. 90, 95 (1967). We conclude that the district 
court has jurisdiction to try the indictment returned 
against the defendant in this case, and accordingly refuse 
to grant the writ on grounds of grand jury abuse. [Slip 
Opinion at 15.] 

The court also declared that: 

Any argument that the important policies underlying 
the [Speech or Debate] Clause require dismissal of an in- 
dictment returned by a grand jury that heard evidence in 
violation of the Clause's principles does not go to the juris- 
diction of the district court, but to the proper means that 
this court should use to effectuate the Clause. As such, we 
believe it is an argument better left for decision on appeal 
from a final judgment. 



34 

We also note that it is far from "clear and indisputable" 
that defendant could prevail on his arguments that presen- 
tation to the grand jury of evidence in violation of the 
Speech or Debate Clause requires dismissal of the indict- 
ment. The Supreme Court consistently has refused to 
countenance challenges to the competency of evidence pre- 
sented to a grand jury, holding that a valid indictment 
returned by a competent grand jury is enough to call for a 
trial. United States v. Calandra, 414 U.S. 338, 342-45 
(1974). 

Moreover, in United States v. Johnson, 383 U.S. 169 
(1966), the Court allowed retrial of the conspiracy count 
even though it was clear from the specification of a legisla- 
tive act in the overt acts supporting that conspiracy count 
that the grand jury heard evidence that the Supreme 
Court held was barred at trial by the Speech or Debate 
Clause. And on appeal after the retrial, the Court of Ap- 
peals rejected Johnson's argument that the indictment was 
invalid because of the presentation of evidence of legisla- 
tive acts to the grand jury. United States v. Johnson, 419 
F.2d 56, 58 (4th Cir. 1969), cert, denied 397 U.S. 1010 (1970). 
See United States v. Blue, 384 U.S. 251, 255 n.3 (1966). [Slip 
Opinion at 16-17.] 

The Government's arguments that Mr. Helstoski's petition was 
untimely and that he had waived his Speech or Debate privilege 
were not addressed by the Court of Appeals since his petition was 
denied on the grounds noted above. 

The opinion turned next to the Government's appeal of the Dis- 
trict Court's order of February 23, 1977, prohibiting the introduc- 
tion by the Government of evidence of the performance of past 
legislative acts by Mr. Helstoski. The Government asserted that 
the Court of Appeals had jurisdiction to review the order pursuant 
to 18 U.S.C. § 3731 which reads in pertinent part: 

An appeal by the United States shall lie to a court of 
appeals from a decision or order of a district courts [sic] 
suppressing or excluding evidence or requiring the return 
of seized property in a criminal proceeding, not made after 
the defendant has been put in jeopardy and before the 
verdict or finding on an indictment or information, if the 
United States attorney certifies to the district court that 
the appeal is not taken for purpose of delay and that the 
evidence is a substantial proof of a fact material in the 
proceeding. 

Mr. Helstoski's contention that the order in question did not 
suppress or exclude any specific items of evidence, and thus was 
not of the type granting jurisdiction to the Court of Appeals, was 
rejected, the court concluding: 

In light of the congressional intent that we recognized in 
Beck that § 3731 be liberally construed, as well as in light 
of the statute's specific command, we believe the district 
court's order in this case fairly may be characterized as 
one "suppressing or excluding evidence." The practical 



35 

pffect of the district court's order is to prevent the Govern- 
ment from introducing evidence of defendant s past legisla- 
tive acts that it otherwise almost certainly would have 
introduced at trial. Section 3731 was designed to allow 
aDDeals from such orders to insure that prosecutions are 
not unduly restricted by erroneous pretrial decisions to 
exclude evidence. [Slip Opinion at 19.] 
Turning to the substantive question, the Court of Appeals reject- 
ed the Government's argument that it should be permitted to 
introduce the private bills themselves and correspondence and con- 
versations referring to Mr. Helstoski's legislative acts in order to 
prove Mr. Helstoski's purpose in accepting the payments in ques- 
tion as contrary to the Supreme Court's holding in Brewster, supra, 
and United States v. Johnson, 383 U.S. 169 (1966). The opinion 
stated that legislative acts may not be shown in evidence for any 
purpose in this prosecution and that the Government may not 
circumvent this prohibition by introducing correspondence and 
statements which, while not themselves legislative acts, contain 
references to past legislative acts on the part of Mr. Helstoski. The 
Court of Appeals declared that to allow a showing of legislative 
acts by such secondary evidence could render the absolute prohibi- 
tion of Brewster meaningless and would drastically reduce the ef- 
fectiveness of the Speech or Debate clause and discourage the 
dissemination of information about legislative activities to the 
public. 

The Court of Appeals also found that Mr. Helstoski had not 
waived his Speech or Debate privilege by testifying before the 
grand jury about legislative acts. While noting that the question of 
whether an individual legislator may waive his Speech or Debate 
privilege is an open one, the court found it unnecessary to decide 
that question in this case. Such a decision was found to be unneces- 
sary since the Court of Appeals agreed with the District Court's 
holding that the purpose of the Speech or Debate clause as a 
protection for the legislature against encroachment by the other 
two branches precludes the finding of a waiver in the context of a 
criminal prosecution where the legislator has not expressly forfeit- 
ed his privilege for the purposes for which the Government seeks 
to use the evidence of his legislative acts. On the facts of this case, 
the Court of Appeals found no such waiver. 

A motion for rehearing en banc filed by the Government on June 
14, 1978, on the issues raised in its appeal was denied on June 30, 
1978. 

The Government filed a petition for a writ of certiorari (No. 78- 
349) in the United States Supreme Court on August 29, 1978, 
seeking review of two questions. First, whether the Speech or 
Debate clause bars the introduction by the Government of any 
evidence which, although not a legislative act, refers to the defend- 
ant's past performance of a legislative act. Second, whether Mr. 
Helstoski's voluntary testimony and production of documents 
before the grand jury constituted a waiver of that privilege in 
regard to the use of the testimony and documents at trial. 

On September 29, 1978, Mr. Helstoski also filed a petition for 
writ of certiorari (No. 78-546) in the Supreme Court. His petition 



36 

sought review of the judgment of the Court of Appeals insofar as 
it denied a petition for a writ of mandamus. In the petition, Mr. 
Helstoski noted his opposition to the petition filed by the Govern- 
ment and suggested to the Court the possibility of consolidation 
of two petitions. Mr. Helstoski's petition presents the following 
questions for review: 

1. Does the United States District Court have jurisdic- 
tion to try petitioner on an indictment which on its face 
charges that as a Member of the Congress of the United 
States he performed certain specific and identified legis- 
lative acts, to wit, the introduction of bills in Congress, 
with corrupt motivation? Under the Speech or Debate 
Clause, does not Congress have exclusive jurisdiction to 
inquire into its Members' performance of legislative acts? 

2. May an indictment of a Congressman described 
above, procured by calling into question before a grand 
jury the legislative acts of that Congressman, proceed to 
trial? 

3. May an indictment offensive to the Speech or Debate 
Clause on its face and in the means by which it was 
procured, nevertheless be prosecuted by forbidding proof 
at trial of the legislative acts alleged in the indictment? 
Would not such a trial procedure amount to both an 
impermissible manipulation of the Speech or Debate 
Clause and a constructive amendment of the indictment, 
in violation of the Fifth Amendment right to be tried 
only upon the indictment voted by a grand jury? 

(Petition for Writ of Certiorari at 2-3, Helstoski v. Meanor, Noc 
78-546.) 

The Government filed a brief in opposition to Mr. Helstoski's 
petition on November 21, 1978. In its brief, the Government listed 
the following questions as being presented for review: 

1. Whether an indictment charging a member of Con- 
gress with bribery, in violation of 18 U.S.C. 201(c), is 
invalid because it contains references to legislative acts 
that are not themselves punishable due to the Speech or 
Debate Clause. 

2. Whether consideration by the grand jury of evidence 
showing legislative acts deprives the district court of ju- 
risdiction to try an indictment alleging a violation of 18 
U.S.C. 201(c). 

3. Whether the district court's restriction of the govern- 
ment's proof at trial to prevent references to legislative 
acts constitutes a constructive amendment of the indict- 
ment. 

(Brief for the United States in Opposition at 1-2, Helstoski v. 
Meanor, No. 78-546.) 

On November 21, 1978, Mr. Helstoski moved in the U.S. District 
Court for the District of New Jersey to dismiss counts VII and 
VIII of the indictment for failure to charge an offense and as the 
product of the presentation to the grand jury of materials and 
facts proscribed by the Speech or Debate clause. 



37 

The petitions for writ of certiorari were granted and consoli- 
dated on December 11, 1978. 

Status.— The cases are pending before the U.S. Supreme Court. 

The full text of the memorandum and order of the District Court 
is printed in the "Decisions" section of the report of Court Proceed- 
ings and Actions of Vital Interest to the Congress, Part 1, April 15, 
1977. 

The opinion of the Court of Appeals is printed in the "Decisions" 
section of Court Proceedings and Actions of Vital Interest to the 
Congress, Part 5, September 15, 1978. 

Chase v. Kennedy 

Civil Action No. 77-2652 (Ninth Cir.) 

Brief — Trueman E. Chase, a resident of California, who had been 
unable to resolve a dispute with the Social Security Administra- 
tion, sent a document styled "Congress of the United States of 
America * * * Petition for Redress" to Senator Edward Kennedy of 
Massachusetts, intending for Senator Kennedy to present the peti- 
tion to the Congress or one of its committees. Instead, because Mr. 
Chase is a resident of California, Senator Kennedy forwarded the 
petition to Senator Alan Cranston of California. 

Senator Kennedy advised Mr. Chase that he had forwarded the 
petition to Senator Cranston. Mr. Chase then wrote to Senator 
Adlai E. Stevenson III, Chairman of the Senate's Select Committee 
on Ethics, protesting Senator Kennedy's action. Senator Stevenson 
forwarded this letter to Senator Cranston and he also advised Mr. 
Chase that he had done so. Upon receipt of Mr. Chase's petition at 
his Washington, D.C. office, Senator Cranston forwarded it to his 
San Francisco office. 

Mr. Chase then filed this action asserting that Senators Kenne- 
dy, Stevenson, and Cranston deprived him of his First Amendment 
right to petition the Government for a redress of grievances. 

On July 12, 1977, the U.S. District Court for the Southern Dis- 
trict of California issued its decision. Judge Turrentine dismissed 
the action concluding that Mr. Chase had not been denied his right 
to petition the Government. Rather he "has confused his right to 
petition with a supposed right to have his petition granted or acted 
upon in a certain way. But no such right is found in the Constitu- 
tion." [Chase v. Kennedy, Civil Action No. 77-305-T (S.D. Calif., 
July 12, 1977); Slip Opinion at 2.] 

As to the actions of the Senators, the court concluded that what- 
ever action a Senator determines to take with petitions is "abso- 
lutely within his discretion and is not a proper subject of judicial 
inquiry, even if it might appear that he may be grossly abusing 
that discretion." [Slip Opinion at 3.] 

On July 18, 1977, Mr. Chase filed a notice of appeal. He also filed 
a notice of direct appeal to the United States Supreme Court on 
September 7, 1977, but no further action has been taken in regard 
to that appeal. 

Status. — The appeal is now pending before the U.S. Court of 
Appeals for the Ninth Circuit. 



38 

The complete text of the District Court's opinion is printed in the 
"Decisions" section of Court Proceedings and Actions of Vital Inter- 
est to the Congress, Part 2, August 15, 1977. 

Rusack v. Harsha (Newly Reported Case) 

No. 77-1137 (M.D.Pa.) 

Brief. — On December 16, 1977, plaintiff, Samuel Rusack, a 
United States Navy civilian employee working as a Supervisory 
Contract Negotiator at the United States Navy Ships Parts Control 
Center (hereinafter "SPCC") filed a defamation action in the U.S. 
District Court for the Middle District of Pennsylvania. The action 
named as defendants Representative William H. Harsha, Stanley 
L. Bishop, P. J. Kanistros, and Poli-Com, Inc. All of the defendants 
filed motions to dismiss. Representative Harsha filed a motion to 
dismiss or alternatively for summary judgment. 

On December 14, 1978, in a memorandum and order issued by 
the District Court granted Congressman Harsha's motion to dis- 
miss and rejected those of the other defendants. 

The facts are reported in the court's memorandum and order, 
which states in pertinent parts: 

According to plaintiffs affidavit, he is a Supervisory 
Contract Negotiator * * * at the SPCC. His authority is 
derived from the Armed Forces Procurement Regulations, 

* * *. He is one of eleven individuals who have buying 
and contracting officer authority at the SPCC. His duties 
include solicitations and requests for proposals. Further- 
more, as a contracting officer at a purchasing office such 
as the SPCC * * * he is authorized to enter into contracts 
in the name of and on behalf of the United States Govern- 
ment * * *. 

Defendant Harsha is a Representative in the United 
States House of Representatives from the Sixth Congres- 
sional District of Ohio. He is the ranking minority member 

* * * of the House Public Works Committee. He is in- 
volved with and has a particular concern in regard to, the 
spending policies of the United States Government. * * * 
In July of 1977, Mr. Harsha was contacted by Mr. Bishop 
involving "military procurement irregularities and taxpay- 
er waste/' * * * Mr. Bishop presented Mr. Harsha with 
material which, inter alia, dealt with plaintiff Rusack and 
his involvement with a particular contract and award. The 
material was reviewed by a member of Mr. Harsha's staff 
who then forwarded a prepared speech to the Congress- 
man, who reviewed it and approved it for delivery and 
publication in the Congressional Record of August 3, 1977. 
[Slip Opinion at 12-13; this report at 198-199. (Footnotes 
omitted.)] 

It was this August 3d speech which Mr. Rusack alleged contained 
defamatory material, specifically that he was charged therein with 
dishonest and illegal conduct, fraudulent and unethical practices 
and collusion and conspiracy to defraud. 

Following the speech Congressman Harsha wrote a letter to Ad- 
miral T. J. Allhouse, commanding officer at the SPCC seeking 



39 

material concerning the award which was part of the basis for the 
August 3d speech. The Admiral sent a substantial volume of mate- 
rial to Congressman Harsha. This material was made available to 
Mr. Bishop by Congressman Harsha for his determination of 
whether it was responsive to the Congressman's request. Mr. 
Bishop determined that the material was not fully responsive and 
on August 31, 1977, Congressman Harsha sent a second letter to 
Admiral Allhouse. In this letter Congressman Harsha sought addi- 
tional material and made several statements about Mr. Rusack 
which Mr. Rusack alleged were defamatory. Congressman Harsha 
claimed, and Mr. Rusack did not contest that neither he nor his 
staff distributed the letter to the general public. 

The SPCC, responding to Congressman Harsha's letter sent addi- 
tional information to the Congressman. The material was again 
analyzed with Mr. Bishop's help. 

After Mr. Bishop had analyzed the material and presented his 
analysis to a member of Congressman Harsha's staff, that staff 
member edited it and submitted it to the Congressman. The Con- 
gressman made some final editorial changes and presented it to the 
Clerk of the House for publication in the Congressional Record. Mr. 
Rusack charges that the material inserted in the Record contained 
defamatory material. 

Mr. Rusack further alleged that after placing the two speeches in 
the Record, Congressman Harsha maliciously distributed and 
caused to be republished the text of the speeches. Congressman 
Harsha responded that he sent copies of his correspondence with 
the SPCC, and their responses along with copies of his speeches 
from the Record to the U.S. Attorney for the District of Columbia, 
the Attorney General, and the Office of the Secretary of Defense. 
Other than that transmittal and the ordinary circulation of the 
Congressional Record, Congressman Harsha denied any republica- 
tion or distribution of the two speeches. 

The court, in its opinion of December 14, 1978, noted three 
categories into which the activities complained of by Mr. Rusack 
could be divided: (1) the insertion of the two speeches into the 
Congressional Record and the general distribution of those Congres- 
sional Records; (2) the August 31, 1977 letter to Admiral Allhouse; 
and (3) the forwarding by defendant Harsha of the copies of the 
two Congressional Records and copies of the correspondence be- 
tween himself and the SPCC to the United States Attorney Gener- 
al, the United States Attorney and the District of Columbia, and 
the Office of the Secretary of Defense. 

The court further noted the grounds on which Congressman 
Harsha sought dismissal: 

Summary judgment was sought on the grounds: (1) that 
all the activity is absolutely privileged under the Speech or 
Debate clause; (2) that reports of alleged criminal behavior 
to appropriate executive officials is constitutionally privi- 
leged; and (3) that criticism of plaintiff Rusack is privileged 
under the First Amendment because the plaintiff is a public 
official and the record establishes that there is no "New 
York Times malice." [Rusack v. Harsha (77-1127), Slip 
Opinion at 16, this report at 203.] 

37-148 O - 79 - 4 



40 

Turning first to the assertion that Congressman Harsha's actions 
were protected by Speech or Debate clause immunity, the court 
noted that Mr. Rusack conceded that congressman Harsha's 
speeches and their publication in the Congressional Record were 
activities which were absolutely privileged and protected by the 
clause. The letter of August 31, 1977 to Admiral Allhouse, the 
court concluded, was also protected by the Speech or Debate clause. 
The court declared: 

The August 31, 1977 letter to Admiral Allhouse is also 
behavior which is encompassed by the Clause. It has long 
been held that investigation by a Congressman regarding 
issues over which legislation may be had is legitimate 
legislative activity and, therefore, protected by the Speech 
or Debate Clause. See Eastland v. United States Service- 
men's Fund, 421 U.S. 491, 504 (1975), Doe v. McMillan, 412 
U.S. 306 (1973); Watkins v. United States, 354 U.S. 178 
(1957); McGram v. Daughterty, 273 U.S. 135 (1927), Mc- 
Surely v. McClellan, 553 F.2d 1277, 1286-8 (D.C. Cir. En 
Banc 1976); writ of cert, dismissed as improvidently grant- 
ed 46 U.S.L.W. 4878 (June 26, 1978). The power over appro- 
priations and expenditures is at the heart of the business 
of Congress. Article 1, Section 8, Clause 13 of the United 
States Constitution specifically gives Congress power over 
the maintenance of the Navy. Knowing how the Navy 
spends the money allotted to it by Congress is essential if 
Congress is going to be able to exercise its power with any 
competency. Defendant Harsha's letter to Admiral All- 
house was an attempt to get needed information, and as 
such, it must be afforded the protection of the Clause. [Slip 
Opinion at 18-19, this report at 204-205. (Footnotes omit- 
ted.)] 

Further, finding that the forwarding of the copy of the letter to 
Admiral Allhouse and the two Congressional Records to the United 
States Attorney for the District of Columbia, the United States 
Attorney General, and the Office of the Secretary of Defense is 
protected under other constitutional provisions, the court decided 
not to reach the question of whether it is encompassed by the 
Speech or Debate clause. 

The court declared that where the complaint alleged that plain- 
tiff was defamed by defendant Harsha in regard to the perform- 
ance of his (plaintiffs) official duty, specifically alleging that Mr. 
Harsha accused plaintiff of violating 18 U.S.C. § 1001, the whole 
thrust of the complaint and the brief in opposition to the motion 
was that defendant Harsha had accused plaintiff of criminal acts. 
To this the court concluded: 

The right to inform federal officials of possible violations 
of federal law continues to be constitutionally protected. 
See United States v. Guest, 383 U.S. 745, 771, 779 (1966), 
Harlan, J., concurring in part and dissenting in part; 
Brennan, J. concurring in part and dissenting in part; 
Williams v. Allen, 439 F.2d 1398 (5th Cir. 1971). I believe 
that the letter to Admiral Allhouse and the forwarding of 
the materials to the United States Attorney for the Dis- 



41 

trict of Columbia, the United States Attorney General, and 
the Office of the Secretary of Defense are protected by this 
constitutional right to inform, afford defendant immunity, 
and, hence, cannot form the basis of a defamation action. 
[Slip Opinion at 21, this report at 207. (Footnotes omitted.)] 

Finally the court addressed the question of whether Congress- 
man Harsha's statements and letters were protected by the First 
Amendment. The court first found that Mr. Rusack was a public 
official. The court declared: 

[i]t is * * * evident that he is intimately involved in the 
expenditures of public funds, a matter of great importance 
so that there is an interest in his qualifications and per- 
formance beyond the interest which might be associated 
with any governmental employee. He is, therefore, a 
public official and since the allegedly defamatory remarks 
dealt with his performance as such an official the New 
York Times malice standard must be applied. [Slip Opinion 
at 23-24, this report at 209.] 

Reviewing the facts, the court concluded that, as a matter of law, 
there could be no finding of malice against the Congressman. 
In conclusion, the court declared: 

In sum, legislative immunity protects defendant Harsha 
from suit based on the two speeches, their insertion in the 
Congressional Record, and the letter to Admiral Allhouse. 
The right to inform creates a constitutional immunity 
from suit for the letter to Admiral Allhouse and the for- 
warding of the material to the United States Attorney 
General, the United States Attorney for the District of 
Columbia, and the Office of the Secretary of Defense, and 
the Constitutional privilege of the First Amendment en- 
compasses all the behavior upon which this action is based 
because, as a matter of law, plaintiff is a public official 
and there can be no showing of New York Times malice 
based on the facts in the record. [Slip Opinion at 27, this 
report at 212-213.] 

Status. — The case is pending in the U.S. District Court for the 
Middle District of Pennsylvania. 

The opinion of the District Court is printed in the "Decisions" 
section of this report at 189. 



III. Powers of Congressional Committees 

United States v. American Telephone and Telegraph Co. 

Civil Action No. 76-1372 (D.D.C.) 

Brief. — On July 22, 1976, the Justice Department filed this action 
in the District Court for the District of Columbia, seeking a tempo- 
rary restraining order enjoining American Telephone & Telegraph 
(hereinafter "A.T. & T.") from complying with a subpoena issued 
by the Chairman of the House Committee on Interstate and For- 
eign Commerce, pursuant to a vote by the Subcommittee on Over- 
sight and Investigations. The chairman of the subcommittee, Rep- 
resentative John Moss, filed a motion to intervene as a party- 
defendant which was granted. (Civil Action No. 76-1372 (D.D.C.).) 

The information sought pursuant to the subpoena included let- 
ters from the Federal Bureau of Investigation (hereinafter "FBI") 
to subsidiaries of A.T. & T. requesting (1) that a leased telephone 
line be provided at the usual commercial rate, (2) a statement that 
the request was made upon a specific authorization of the Attorney 
General for purposes of national security, (3) the phone number, 
location, or other information relating to the lines to be intercept- 
ed, and (4) the statement that A.T. & T. was not to disclose the 
existence of the request because such disclosure would obstruct and 
impede the investigation. 

The request letter includes the phone number, address, or other 
information identifying the object of the electronic surveillance. 
Such a request is necessary because the information intercepted is 
moved from the poi- ' of interception (i.e., the telephone line lead- 
ing to the object structure) to the point of monitoring (which may 
be the local FBI office) by way of a leased telephone line, which can 
be installed only by A.T. & T. and its subsidiaries. 

Paragraph 1 of the subpoena seeks such "national security re- 
quest letters." 

The return date on the subpoena was originally set for June 28, 
1976, but because of continuing negotiations the compliance date 
was extended to July 23, 1976. 

The executive branch presented the committee with an alterna- 
tive proposal which the court described thus: "Under this proposal, 
following A.T. & T.'s preparation of an 'inventory' of the request 
letters held at A.T. & T., the FBI would identify by date those 
which were 'foreign intelligence surveillances' and those which 
were 'domestic surveillances.' In regard to the past domestic sur- 
veillances, the FBI would furnish to the subcommittee the memo- 
randa on which the Attorney General based his authorization for 
such surveillances, with only minor deletions necessary to protect 
ongoing investigations. From the 'foreign intelligence surveil- 
lances, the subcommittee could select sample items for any 2 
years, and representatives of the subcommittee would be given 
access to the memoranda on which the Attorney General based his 

(43) 



44 

authorization of those surveillances with names, addresses, or 
other information identifying targets and sources deleted." [United 
States v. American Telephone and Telegraph Co., 419 F. Supp. 454, 
458-59 (D.D.C. 1976).] 

President Ford "also proposed a procedure whereby verification, 
and resolution of any questions, would be accomplished by the 
direct participation of the Attorney General and if necessary by 
the President himself." This proposal was rejected by Subcommit- 
tee Chairman Moss. On July 22, 1976, President Ford wrote to 
Representative Harley O. Staggers, Chairman of the Committee on 
Interstate and Foreign Commerce, stating: 

I have determined that compliance with the subpoena 
would involve unacceptable risks of disclosure of extremely 
sensitive foreign intelligence and counterintelligence infor- 
mation and would be detrimental to the national defense 
and foreign policy of the United States and damaging to 
the national security. Compliance with the Committee's 
subpoena would, therefore, be contrary to the public inter- 
est. Accordingly, I have instructed the American Tele- 
phone and Telegraph Company, as an agent of the United 
States, to respectfully decline to comply with the Commit- 
tee's subpoena. [419 F. Supp. at 459.] 

The suit was filed by the executive branch when it became clear 
that notwithstanding the President's order, A.T. & T. was prepared 
to turn over the subpoenaed documents to the committee. 

Chairman Moss asserted that the Speech or Debate clause of the 
Constitution was an absolute bar to judicial interference with a 
Congressional subpoena issued in the conduct of a legitimate legis- 
lative investigation. 

The Justice Department countered that the suit should only be 
considered one seeking to restrain a private party from releasing 
documents in its possession. This argument was advanced, the 
Justice Department said, so that the court could avoid dealing with 
a constitutional confrontation between two of the three branches of 
the Federal Government. The Department argued that by following 
its approach the court need not consider the applicability of the 
Speech or Debate clause, since the immunity provided by that 
constitutional provision runs only to Members of Congress and 
their close aides when defending against a lawsuit, and does not 
afford any protection to a private entity such as A.T. & T. 

On July 30, 1976, the court issued its decision. Rejecting the 
Department's approach, the court said: 

[T]o take this avenue would be to place form over sub- 
stance. The effect of any injunction entered by this court 
enjoining the release of materials by A.T. & T. to the 
Subcommittee would have the same effect as if this court 
were to quash the Subcommittee subpoena. In this sense 
the action is one against the power of the Subcommittee 
and should be treated as such, assuming that Representa- 
tive Moss has authority to speak for the Subcommittee. 
[419 F. Supp. at 458.] 



45 

The court determined that it was confronted with a direct con- 
test betw^n the investigatory power of the Congress and the invo- 
*•£?£ PYPcutive privilege. Rejecting the contentions of absolute 
rtehte asserted by bolh Chairman Moss and the Justice Depart- 
ment, the court determined that: 

Here bv nature, the extent and the relative importance 
of the power of one coordinate branch of government must 
be balanced against that of the other. Neither can be 
considered in a vacuum. [419 F. Supp. at 459.] 
In balancing the competing interests the court noted several 
factors which it concluded must be considered. These included: 

(1) Whether the information requested is essential to "the re- 
cnonsible fulfillment of the committee's functions." Senate Select 
Committee v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (concerning a 
Congressional subpoena of executive documents not related to na- 

(2) Whether there is "an available alternative" which might 
provide the required information "without forcing a showdown on 
the claim of privilege." United States v. Reynolds, 345 U.S. 1, 11 

(1952). 

(3) The circumstances surrounding and the basis for the Presi- 
dential assertion of privilege. Id.: United States v. Nixon, 418 U.S. 
683, 710-711 (1974). 

The court concluded: 

In the context of this case, and the court emphasizes 
that this decision is limited to the circumstances of this 
case, the court determines that there are alternative 
means available for obtaining the information required by 
the Subcommittee, that the particular form in which that 
information is sought is not absolutely essential to the 
legislative function, and that the President's determina- 
tion that release of this material would present an unac- 
ceptable risk of disclosure of matters concerning the na- 
tional defense, foreign policy, and national security 
outweighs the Subcommittee's showing of necessity. [419 F. 
Supp. at 460.] 

In deciding to grant the permanent injunction against compli- 
ance with the subpoena, the court considered the likelihood that 
the subpoenaed material if turned over to the subcommittee might 
be made public. The court noted that the President had determined 
that release of the material would present an unacceptable risk to 
national security and foreign policy and that: 

[I]f the materials were turned over to the Subcommittee, 
the information could legally be released upon the major- 
ity vote of a quorum (8 Members) of the Subcommittee 
unless such a determination were reversed by the affirma- 
tive action of the House. In addition, each of the 435 
Members of the House of Representatives would have 
access to such material pursuant to Rule XI(2Xe)(2) of that 
Chamber's Rules. The potential for disclosure of this 
highly sensitive information, if put into the hands of so 
many individuals, has been determined by the President to 



46 

be an unacceptable risk. Such a determination is entitled 
to great weight. 

The court is not implying that the Members of the Sub- 
committee, or of the House of Representatives, will act 
negligently or in bad faith if they have access to these 
documents. But it does appear to the court that if a final 
determination as to the need to maintain the secrecy of 
this material, or as to what constitutes an acceptable risk 
of disclosure, must be made, it should be made by the 
constituent branch of government to which the primary 
role in these areas is entrusted. [419 F. Supp. at 460-61.] 

Defendant-intervenors filed an appeal on August 2, 1976, with 
the Court of Appeals for the District of Columbia Circuit, and 
asked for an expedited briefing period. On August 6, 1976, the U.S. 
Court of Appeals for the District of Columbia set an expedited 
schedule and designated the case for hearing in the October 14 to 
November 3 session of that court. 

On August 26, 1976, the House of Representatives passed House 
Resolution 1420, authorizing Chairman Moss to proceed in this 
action on behalf of the House of Representatives and the House 
Committee on Interstate and Foreign Commerce. Chairman Moss, 
on September 1, filed a motion for substitution of parties to reflect 
the change in his status pursuant to the House resolution. The 
motion was granted on September 14 and the caption of the case 
was changed by deleting the words "Member, United States House 
of Representatives," and inserting in lieu thereof "Individually and 
on behalf of the U.S. House of Representatives and the House 
Committee on Interstate and Foreign Commerce." 

In his suggestion that the Appeals Court hear the case en banc, 
filed on September 17, 1976, Representative Moss set forth the 
issues he felt were present in the appeal: 

Appellant submits that the issues presented by this 
appeal are of exceptional public and constitutional impor- 
tance, and should be decided by the Court en banc. Among 
such issues are the following: 

a. Whether the District Court erred in holding that the 
President has the unreviewable power to prevent Congress 
from receiving documents from a private company pursu- 
ant to an admittedly lawful Congressional subpoena, 
merely by asserting that Congress' receipt of such docu- 
ments would be detrimental to national security; 

b. Whether the District Court erred in issuing an injunc- 
tion that requires Congress to accept the opinion of the 
District Court as to the manner in which Congress should 
exercise its discretion in conducting an admittedly lawful 
investigation; and 

c. Whether, contrary to the decision of the District 
Court, Congress has the constitutional power and responsi- 
bility to inform itself as to the nature and extent of war- 
rantless wiretapping by the executive branch within the 
United States. [Suggestion of Appellant for Hearing En 
Banc, filed September 17, 1976, at 4.] 



47 

In its response to the suggestion for a hearing en banc, the 
Justice Department noted: 

The issue upon which this case turns is whether, under 
our system of government, the President of the United 
States, or the House Committee on Interstate and Foreign 
Commerce, ultimately must determine the acceptability of 
recognized risks to the national security. [Response to Ap- 
pellant's Suggestion for Hearing En Banc, filed September 
23, 1976, at 1.] 

On October 8th, Chairman Moss' petition for a hearing en banc 
was denied. 

On December 30, 1976, the Court of Appeals issued its opinion. 
The court, noting that both a new House and a new President 
would be in office early in 1977, remanded the case to the District 
Court without decision on the merits. The Appeals Court expressed 
the hope that through further negotiations the parties could reach 
agreement "without requiring a judicial resolution of a head-on 
confrontation * * *" [United States v. American Telephone and 
Telegraph Co., 551 F.2d 384 (D.C. Cir., 1976)]; between the legisla- 
tive and executive branches of Government. The Court of Appeals 
further ordered that the District Court report to the appeals panel 
within 3 months on the progress of the negotiations. 

Although the Court of Appeals stated that it was not ruling on 
the merits of the injunction against compliance with the Congres- 
sional subpoena, it did direct the District Court to modify the 
injunction which it (the District Court) had issued so as "to exclude 
request letters pertaining to taps classified by the FBI as domestic, 
since there was no contention by the Executive nor any finding by 
the District Court, of undue risk to the national security from 
transmission of those letters to the subcommittee." [551 F.2d at 
395.] 

The parties met before U.S. District Judge Gasch for calendar 
calls on February 18, March 21, and April 6, 1977, to report on the 
progress of their negotiations. In a memorandum dated May 16, 
1977, Judge Gasch reported to the Court of Appeals that the negoti- 
ations had not resulted in a resolution of the problem and that the 
District Court had no suggestions as to how the disputes could be 
resolved. Supplemental argument was heard by the Court of Ap- 
peals on June 3, 1977. 

On October 20, 1977, the Court of Appeals issued an opinion in 
which it mandated a procedure to be supervised by the District 
Court in an effort to facilitate a compromise between the Subcom- 
mittee and the executive. Additionally, the Court of Appeals con- 
tinued the injunction against A.T. & T., at least until the procedure 
it proposed has been tried and found inadequate. 

Before setting forth the procedure to be followed, the court ad- 
dressed two issues: (1) was judicial abstention warranted on "politi- 
cal question" grounds, and (2) whether judicial interference with 
the investigatory actions of the Subcommittee was barred by the 
Speech or Debate clause of the Constitution. 

The court first determined that judicial abstention on political 
question grounds was not warranted in the circumstances of this 
case, noting generally that the judicial branch abstains on political 



48 

question grounds when it concludes that either the legislative or 
executive branches has the constitutional authority to make a 
decision that is dispositive of the dispute. Two factors were indicat- 
ed in the opinion as militating against abstention. First, the dis- 
pute involved a conflict between two branches of the Government, 
neither of which could be said to have an unequivocal and unilater- 
al constitutional right to decide the matter in question. Further- 
more, the court felt, effective judicial settlement of the issue was a 
possibility and judicial abstention would not lead to an orderly 
resolution of the dispute. 

The court next rejected the contention that judicial interference 
with the actions of the investigation being conducted by the Sub- 
committee was barred by the Speech or Debate clause. The court 
concluded that: 

What the cases establish is that the immunity from judi- 
cial inquiry afforded by the Speech or Debate Clause is 
personal to Members of Congress. Where they are not 
harassed by personal suits against them, the clause cannot 
be invoked to immunize the congressional subpoena from 
judicial scrutiny. [Slip Opinion at 18.] 

The court then set forth its plan which it characterized as a 
' 'gradual approach * * * consistent with our view that the present 
dispute should be regarded as a concerted search for accommoda- 
tion between the two branches." [Slip Opinion at 21.] 

As enunciated by the court: 

Under our approach, the Subcommittee staff would 
select at random a sample of 10 unedited memoranda for 
the two sample years, and compare these with the corre- 
sponding expurgated ones. On the issue of notes, still a 
bone of contention, our approach would permit the staff to 
take notes on their impressions concerning the accuracy of 
the classification of the memoranda as relating to foreign 
intelligence surveillance and use of generic terms, but the 
notes would have to be left at the FBI under seal. The 
Subcommittee staff could report their conclusions orally to 
the Subcommittee. The Subcommittee would then decide 
whether to take a claim of inaccuracy — alleging, for exam- 
ple, executive abuse of the ' 'foreign intelligence" rubric — 
to the District Court for resolution. If the District Court, 
upon in camera inspection of the original and edited 
memoranda and of the staff notes, found significant inac- 
curacy, it would take remedial action. The specifics of its 
actions are a matter for sound discretion. Relief might 
involve, for example, providing the Subcommittee staff 
access to a larger sample of unedited memoranda to deter- 
mine whether any previously discovered inaccuracy was 
isolated or systematic. If the initial inaccuracy suggested 
deviousness, the District Court might conclude that the 
cooperative approach is unfruitful and unmanageable, and 
that the court should withdraw from its assistance to the 
executive by dissolving the injunction. [Slip Opinion at 22.] 



49 

The executive would be permitted to employ a substitution proce- 
dure, selecting at random another memorandum to be substituted, 
if any of the randomly selected original memoranda would in the 
opinion of the Attorney General, cause grave injury to the national 
security or possibly result in physical harm to any person it dis- 
closed. The procedure could be implemented, 

[B]ut only upon an in camera showing of two things; the 
accuracy and fairness of the edited memorandum, and the 
extraordinary sensitivity of the contents of the original 
memorandum to the national security. The determination 
of the District Court will, of course, be subject to appellate 
review. [Slip Opinion at 22-23.] 

The court emphasized the provisional nature of the remedy it 
ordered, and indicated that such an approach was required given 
the negotiating positions of the parties and the court's desire to 
accommodate their substantial needs and yet refrain, if possible, 
from upholding either of the claims of absolute authority. 

The Government filed a petition for rehearing on December 12, 
1977, which was denied on the same day. In its petition for rehear- 
ing the Government sought to have the Court of Appeals clarify, or 
if necessary modify, its opinion of October 20, 1977, so as to indi- 
cate that it is not the intent of the court to allow counsel for the 
parties to participate in the in camera proceedings directed at 
verifying the need for invoking the substitution procedure. 

The Court of Appeals refused to so clarify or modify its opinion 
and instead affirmed its intention to allow the District Court to 
permit participation by counsel for the Subcommittee. The opinion 
distinguished the facts in the instant case from those in cases 
which have upheld ex parte proceedings in similar situations in- 
volving private parties: 

The present case does involve the additional considera- 
tion that it is a body of the legislature that is seeking 
access, and that it has not only threshold legal standing 
but claims the high ground of seeking information for a 
legislative purpose. [Slip Opinion at 3.] 

The court further stated: 

Counsel for a legislative committee may be subject to 
the kind of security clearance that our decision contem- 
plated for congressional staff, and may also be subject to a 
District Court's conditions on access to in camera material. 
In such respects, the participation of counsel is in aid of 

a c £ urt ' his Primary position is as an officer of the court, 
and he may even be precluded from consultation with his 
client on the matters involved. * * * We have not accepted 
the contention that the executive determination that na- 
tional security may be involved is conclusive and not sub- 
Jec . to any further inquiry, nor have we accepted the rival 
claim that Congressional right of access to documents for 
legislative purposes is at any time absolute. If in the inter- 
est ot national security the executive seeks the aid of the 
judicial branch, the courts are entitled to obtain, under 



50 

circumscribed conditions, the aid they need for their task. 
[Slip Opinion at 3.] 

On December 12, 1978, a joint motion to dismiss without preju- 
dice, which indicated that the matter had been amicably resolved, 
was filed in the District Court. 

Status. — The case was dismissed without prejudice on December 
21, 1978. No further action has been taken. 

The full text of the July 30, 1976 memorandum and order of the 
District Court is printed in the "Decisions" section of Court Pro- 
ceedings and Actions of Vital Interest to the Congress, August 15, 
1976. 

The full text of the December 30, 1976 opinion of the Court of 
Appeals is printed in the "Decisions" section of Court Proceedings 
and Actions of Vital Interest to the Congress, December 1976. 

The full text of the May 16, 1977 memorandum of the District 
Court to the Court of Appeals is printed in the "Decisions" section 
of Court Proceedings and Actions of Vital Interest to the Congress, 
Part 2, August 15, 1977. 

The full text of the October 20, 1977 and December 12, 1977 
opinions of the Court of Appeals are printed in the "Decisions" 
section of Court Proceedings and Actions of Vital Interest to the 
Congress, Part 3, December 31, 1977. 

Koniag, Inc. v. Andrus (formerly Kleppe) 

No. 78-512 (U.S. Supreme Court) 

Brief— These actions were filed in the United States District 
Court for the District of Columbia by 11 Alaskan communities 
challenging decisions of the Secretary of the Interior which found 
each of them ineligible to receive land and money under the 
Alaska Native Claims Settlement Act (hereinafter "Claims Settle- 
ment Act"), 43 U.S.C. § 1601 et seq. (Supp. Ill, 1973.) [Civil Action 
Nos. 74-1061, 74-1134, 74-1790 to 74-1795, 75-452, 75-485, and 75- 
1097 (D.D.C.).] 

The cases were consolidated in the District Court for resolution 
of those questions which plaintiffs and the defendant agreed could 
be adequately presented on cross-motions for summary judgment. 

The Claims Settlement Act sought to accomplish a fair, and 
rapid settlement of all aboriginal claims by Natives and Native 
groups of Alaska without litigation. Under it, 40 million acres of 
land and $962.2 million were to be disbursed to regional corpora- 
tions and villages that qualified. The Secretary of the Interior was 
given the responsibility of administering the program outlined in 
the legislation. Among his responsibilities was the final determina- 
tion of which applicants were "villages", as defined by the Claims 
Settlement Act, which were eligible for participation in the distri- 
bution. The Secretary's regulations required the Juneau, Alaska, 
Area Office of the Bureau of Indian Affairs to make these determi- 
nations not later than December 19, 1973. Prior to reaching a 
decision, the Area Office was required to publish proposed deci- 
sions, which became final unless appealed within 30 days. Upon 
receipt of a protest the Area Director was to consider and evaluate 
it and render a decision within 30 days. These decisions then 



51 

became final unless an "aggrieved party" appealed to the Secretary 
of the Interior by filing a notice with the Alaska Native Claims 
Appeal Board (hereinafter ' 'Board"). The Secretary of the Interior 
reserved to himself the right to make the ultimate decision in each 
case. 

If a case was appealed, however, a record was usually built by 
assigning the case to an administrative law judge from Interior, 
who would hear the case de novo in an adversary proceeding. At 
these hearings the "aggrieved parties" were usually represented by 
an attorney from the Interior Department's Solicitor's Office. The 
administrative law judge would hear evidence and make his deci- 
sion in camera. The decision was forwarded in camera to the Board 
without being served on the communities. The Board made a 
formal decision and submitted it to the Secretary of the Interior in 
camera. The Secretary then consulted with his staff and reached a 
final decision. Only then were the communities notified as to what 
decisions had been reached. 

In the.je cases the Area Director issued decisions determining 
that the 11 communities were "villages" eligible for benefits under 
the Claims Settlement Act. The Fish and Wildlife Service, the 
Forest Service, or the State of Alaska, and certain environmental 
groups appealed one or another of the 11 decisions. After full de 
novo proceedings before the administrative law judge and the 
Board, the Secretary's decision was that three of the communities 
were of one class of "villages" but not of another, thus reducing the 
benefits to which the communities believed they were entitled. The 
other eight plaintiffs were determined not to be "villages" as de- 
fined by the Claims Settlement Act. The 11 communities brought 
actions to obtain judicial relief from the Secretary's decisions. 

While the village claims were being considered by the Secretary, 
the Subcommittee on Fisheries and Wildlife Conservation and the 
Environment of the House Committee on Merchant Marine and 
Fisheries, chaired by Representative John Dingell, held hearings 
which were described as oversight hearings on the implementation 
of the Claims Settlement Act by the Department of the Interior. 

Plaintiffs argued that these hearings adversely affected their 
position on the issues in dispute and improperly influenced the 
ultimate decisions by the Secretary. In particular, plaintiffs noted 
the appearance of Kenneth Brown, "who served as legislative coun- 
sel and chairman of the Alaska Task Force Working Committee of 
the Department of the Interior and was one of the Secretary's two 
principal advisers who reviewed the cases with him at the time he 
made his decision in the plaintiffs' case." [Koniag, Inc. v. Kleppe, 
405 F. Supp. 1360, 1371 (D.D.C. 1975).] 

In a memorandum and order handed down on November 14, 
1975, United States District Judge Gerhard A. Gesell ruled, inter 
alia, that the Dingell hearings were an impermissible interference 
with the administrative process, and that the Area Director's deci- 
sions designating plaintiffs as eligible villages should be reinstated 
since they were the last "untainted" decisions made before Decem- 
ber 19, 1973, the date by which the Claims Settlement Act required 
decisions to be made. 



52 

The stated purpose of the hearings, the court noted, was to 
present a forum for discussing the implementation of the Claims 
Settlement Act. But, said the court: 

in fact the Committee, through its chairman and staff 
members, probed deeply into details of contested cases 
then under consideration indicating that there was "more 
than meets the eye." The entire rule-making process was 
re-examined, travel vouchers and other information were 
sought to probe the adequacy of the investigations made, 
all papers in the pending proceedings were demanded, the 
accuracy of data and procedures followed was questioned, 
and constantly the Committee interjected itself into as- 
pects of the decision-making process. While representatives 
of Interior indicated they were very concerned about preju- 
dice to the quasi-judicial administrative process, and the 
chair on several occasions denied that it was his purpose 
to pressure the agencies involved, Representative Dingell 
stated that he was obliged to confess that he had doubts as 
to whether the law was being properly carried out. On key 
issues now in dispute before the court, representatives of 
the Government were obliged to take positions as to the 
interpretation of the Act. A strenuous effort was made by 
the chairman to encourage protest and appeals, coupled 
with comments indicating his clear impression that all 
that could be done was not being done and that some of 
the results being reached were contrary to congressional 
intent. It was following this experience that settlements 
arranged with two of the plaintiffs * * * were abandoned 
by the Department of the Interior because of the hearings. 
It should also be noted again that when the Secretary 
reached the crucial point of making his personal decision 
on the merits of cases that were investigated and criticized 
by the Committee he had as one of his two immediate 
personal advisors Mr. Brown, who had been subjected to 
the intervention and subtle harassment of the Legislative 
Branch. 



The Dingell hearings constituted an impermissible con- 
gressional interference with the administrative process. 
This situtation presents a disturbing conflict between the 
Congress and the Executive Branch, and it is the responsi- 
bility of the Judiciary in this instance to prevent an imper- 
missible intrusion by one branch into the domain of the 
other. It is no less the responsibility of the Court to protect 
the procedural due process rights of litigants and "to pre- 
serve the integrity of the judicial aspect of the administra- 
tive process." [Pillsbury Co. v. Federal Trade Commission, 
354 F.2d 952, 964 (5th Cir. 1966).] It cannot be gainsaid 
that the "appearance of impartiality — the sine qua non of 
American judicial justice — " was sacrificed in this in- 
stance. Id. "[P]rivate litigants [have a right] to a fair trial 
and, equally important, [a] right to the appearance of im- 
partiality, which cannot be maintained unless those who 



53 

, fVlp iudicial function are free from powerful exter- 
eX J rC !nfluences '' 1i The appearance of justice was 
breached a^d while the complaining party is not required 
^shoulder the virtually impossible burden of proving 
whether and in what way the outcome before the agency 
was actually influenced by the congressional intrusion the 
Evidence before the court indicates that the Dingell hear- 
ts indeed had a direct and demonstrable effect at least 
on the cases of [the two plaintiffs with whom the settle- 
ment with the Interior Department was abandoned]. [405 
F. Supp. at 1371-1372.] 
The Department of the Interior appealed each of the cases to the 
Court of Appeals and asked that the cases be consolidated for the 
purpose of appeal. The motion to consolidate was granted. 

On February 23, 1977, the new Secretary of the Interior, Cecil D. 
Andrus, was substituted in place of Thomas S. Kleppe as a party to 
these appeals. 
The case was argued on March 24 1977 

The U S. Court of Appeals for the District of Columbia Circuit 
issued an opinion on April 28, 1978, affirming in part and reversing 
in part the ruling of the District Court. In the opinion, filed for the 
court by Judge Robb, the Circuit Court agreed with the District 
Court that the appellate procedure established for the determina- 
tion of appeals made under the Claims Settlement Act did not meet 
the requirements of due process. The Circuit Court concluded that 
the original procedure established by the Secretary should have 
permitted the parties to take exceptions to the recommended deci- 
sions of the administrative law judge and to submit briefs to the 
Board for its consideration. Rather than directing the reinstate- 
ment of the Bureau of Indian Affairs decisions, as the District 
Court had done, the Circuit Court remanded the cases to the Dis- 
trict Court for remand to the Secretary for a redetermination of 
the appeals. 

The decision of the District Court was reversed by the Court of 
Appeals in regard to the issues of standing and Congressional 
interference. The Court of Appeals held that the State of Alaska 
and Federal agencies concerned with the possible impact of deter- 
minations made by the Bureau of Indian Affairs Area Office under 
the Claims Settlement Act had standing under the Interior Depart- 
ment's regulations. 

The Circuit Court's opinion rejected the holding of the District 
Court that the hearings "constituted an impermissible Congression- 
al interference with the administrative process" the lingering ef- 
fects of which made the usual remedy of remand to the Secretary 
for redetermination impossible. It is unclear from the opinion 
whether the Court of Appeals concluded that there was no "inter- 
ference" with the administrative process, or whether on this point 
the court only concluded that what "interference" there was was 
not severe enough to preclude a redetermination by the Secretary. 
The Appeals Court ruled that the decision in Pillsbury (supra) was 
not controlling since in this action none of the individuals called to 
testify before the Subcommittee was a decisionmaker as was the 
case in Pillsbury. The only possible exception, said the court, was 



54 

Mr. Brown, who briefed the Secretary on the administrative ap- 
peals before the Secretary made his determinations. About Mr. 
Brown's appearance, the court said: 

[E]ven if we assume that the Pillsbury doctrine would 
reach advisors to the decisionmaker, Mr. Brown was not 
asked to prejudge any of the claims by characterizing their 
validity. See Pillsbury Co. v. FTC, supra, at 964. The worst 
cast that can be put upon the hearings is that Brown was 
present when the subcommittee expressed its belief that 
certain villages had made fraudulent claims and that the 
Bureau of Indian Affairs decisions were in error. This not 
enough. [Slip Opinion at 19.] 

The Court of Appeals also dealt with the question of whether a 
letter sent by Congressman Dingell to the Secretary two days 
before his determination of the ineligibility of eight of the villages 
constituted an improper interference in the administrative process. 
Terming the letter a "more serious matter", the court stated: 

A more serious matter is a letter that Congressman 
Dingell sent to the Secretary two days before he deter- 
mined that eight of these villages were ineligible. The 
letter requested the Secretary to postpone his decisions on 
the cases pending a review and opinion by the Comptroller 
General, because it "appears from the testimony [at the 
hearings] that village eligibility and Native enrollment 
requirements of ANSCA [Alaska Native Claims Settlement 
Act] have been misinterpreted in the regulations and that 
certain villages should not have been certified as eligible 
for land selections under ANSCA." The letter did not 
specify any particular villages, but we think it compro- 
mised the appearance of the Secretary's impartiality. 9 D.C 
Federation of Civic Assn's v. Volpe, 148 U.S. App. D.C. 207, 
222, 459 F.2d 1231, 1246, cert, denied, 405 U.S. 1030 (1972); 
see Pillsbury Co. v. FTC, supra, at 964. Nevertheless, a 
remand to the Secretary, rather than a reinstatement of 
the BIA decisions, is the proper remedy in this case. As- 
suming the worst— that the letter contributed to the Secre- 
tary's decision in these cases — we cannot say that 3Vfc 
years later, a new Secretary in a new administration is 
thereby rendered incapable of giving these cases a fair and 
dispassionate treatment. 



9 We of course intimate no view as to the validity of the Congressman's 
criticism. 

[Slip Opinion at 19-20.] 

On April 28, 1978, the cases were remanded to the District Court 
for remand to the Secretary for redetermination of the appeals. 

The appeals were remanded by the District Court to the Secre- 
tary on July 31, 1978. 

On September 25, 1978, the villages filed a petition for writ of 
certiorari in the U.S. Supreme Court. 

In their petition, the villages noted several questions as being 
presented, including, inter alia, whether a District Court, having 



55 

found that administrative proceedings have (a) violated plaintiffs' 
rights to due process and (b) been tainted by Congressional intru- 
sion into the administrative process, exceeds the bounds of its 
discretion in fashioning a remedy by reinstating the last untaint- 
ed determination where Congress has required that the matter 
before the agency be resolved rapidly and with certainty. 

Petitioners sought review of the appellate court's decision with 
respect to (1) standing, (2) the remedy fashioned by the District 
Court, (3) the authority of the Secretary to redetermine residence 
for purposes of village eligibility, and (4) the propriety of the 
appellate court's remand order in the case of Salamatof Village. 
Among the reasons to grant certiorari put forth by petitioners is 
the assertion that the court has the responsibility to mark the 
appropriate limits of the investigatory power of Congressional 
committees and to assure the proper functioning of the Federal 
judiciary. 

A brief in opposition to the petition for writ of certiorari was 
filed for the Secretary of the Interior on November 16, 1978. In 
the brief it was argued that the decision of the Court of Appeals 
was correct and was not in conflict with any decision of the 
Supreme Court, and that the issues presented were not of recur- 
ring importance. 

Status. — The petition for writ of certiorari was denied on De- 
cember 11, 1978. No further action has been taken. 

That portion of the District Court's opinion which is of interest 
to the House of Representatives is printed in the ' 'Decisions" sec- 
tion of the report of Court Proceedings and Actions of Vital Interest 
to the Congress, Part 1, April 15, 1977. 

The opinion of the Court of Appeals is printed in the "Decisions" 
section of the report of Court Proceedings and Actions of Vital 
Interest to the Congress, Part 4, May 15, 1978. 

Exxon Corp. v. Federal Trade Commission 

No. 77-1302 (D.C. Cir.) 

Kerr-McGee Corp. v. Federal Trade Commission 

No. 77-1303 (D.C. Cir.) 
and, 

Union Carbide Corp. v. Federal Trade Commission 

No. 77-1304 (D.C. Cir.) 

Brief— On May 7, 1976, Union Carbide Corp. (hereinafter "Union 
Carbide") filed a complaint for injunctive and declaratory relief 
against the Federal Trade Commission (hereinafter "FTC"), and 
the Chairman, Commissioners, and Secretary of the FTC, to pre- 
vent the FTC from "releasing to two Congressional committees, 
and thus to the public, commercially sensitive trade secrets relat- 
ing to plaintiffs' coal and nuclear business, which the Commission 
is required to keep confidential under Section 6 of the Federal 
Trade Commission Act, 15 U.S.C. § 46(f), and under common law 
protections for trade secret information." [Verified Complaint for 
Injunctive and Declaratory Relief, Union Carbide Corp. v. FTC, 
Civil Action No. 760793 (D.D.C.).] Union Carbide states that pursu- 



56 

ant to an FTC subpoena dated January 31, 1975, they turned over 
to the FTC commercially sensitive data and trade secrets, and 
notified the FTC of the confidential nature of the data. The com- 
plaint states that Union Carbide and the FTC entered into an 
agreement that the FTC would give Union Carbide 10 days' notice 
before releasing any information. On May 5, 1976, the FTC notified 
Union Carbide that it was considering releasing the data to the 
Senate Judiciary Committee's Antitrust and Monopoly Subcommit- 
tee and to the House Interstate and Foreign Commerce Commit- 
tee's Subcommittee on Oversight and Investigations, and that the 
commissioners expected to vote unanimously to release the materi- 
al by May 7, 1976. Furthermore, despite the 10-day notice agree- 
ment, the FTC said that Union Carbide might not receive any 
further notice. Union Carbide asserted that on numerous previous 
occasions commercially sensitive trade secret data submitted to 
Congressional committees and subcommittees had become public. 
They also alleged that if the FTC released this information it 
would be in violation of 15 U.S.C. § 46(f), which says the FTC may 
make public information it obtains "except trade secrets and the 
names of customers," and that the release of the data would also 
violate Union Carbide's common law right of confidentiality of its 
trade secrets. Union Carbide asked the court to enjoin the defend- 
ants from releasing the information to anyone outside the FTC, 
including, but not limited to, any committee or subcommittee of 
Congress, and to issue a declaratory judgment that the release of 
such data would violate 15 U.S.C. § 46(f) and Union Carbide's 
common law right to preserve its trade secrets. 

U.S. District Judge John H. Pratt issued an order on May 7, 
1976, enjoining the FTC from releasing the information to any 
person outside the FTC until 10 days after the disposition of Ash- 
land Oil Co. v. FTC, No. 76-1174 (D.C. Cir.), since it appeared to 
the court that the same issue was before the U.S. Court of Appeals 
in that case. [For a brief of Ashland Oil Co. v. FTC, see Court 
Proceedings and Actions of Vital Interest to the Congress, Part 2, 
August 15, 1977, at 25.] 

Separate complaints were filed on May 11, 1976, by Exxon Corpo- 
ration (hereinafter "Exxon") [Exxon Corp. v. FTC, Civil Action No. 
76-0812 (D.D.C.)] and Kerr-McGee Corporation (hereinafter "Kerr- 
McGee") [Kerr-McGee Corp. v. FTC, Civil Action No. 76-0814 
(D.D.C.)] against the same defendants as in Union Carbide, stating 
that they had turned over to the FTC certain confidential data 
relating to uranium mining, milling, exploration and production 
pursuant to FTC subpoenas issued in early 1975. Their complaints 
state that they emphasized to the FTC the confidential nature of 
the information when the materials were turned over to the FTC. 
They further state that on May 5, 1976, the staff of the FTC 
notified them that the Commission was considering the imminent 
release of the data to the Senate Judiciary Committee's Antitrust 
and Monopoly Subcommittee and/or individual members of the 
committee. On May 10, 1976, the staff of the FTC advised them 
that the material would be turned over on May 11, 1976. Both 
Exxon and Kerr-McGee assert that "the record of commercially 
sensitive trade secret information finding its way into the public 
domain from Congress" shows that there is a high probability that 



57 

submission of the data to a Congressional subcommittee would 
result in their release to the public. Both alleged that release of the 
information by the FTC would violate 15 U.S.C. § 46(f), 18 U.S.C. 
§ 1905, and plaintiffs' common law right to protection of confiden- 
tiality of trade secrets. Both asked the court to enjoin the defend- 
ants from releasing the information to anyone outside the FTC, 
including, but not limited to, any committee or subcommittee of 
Congress, and to issue a declaratory judgment that the release of 
such information would violate 15 U.S.C. § 46(f), 18 U.S.C. § 1905, 
and plaintiffs' common law right to preserve their trade secrets. 
The plaintiffs also filed motions for injunctive order similar to the 
one granted in Union Carbide. 

On May 11, 1976, Judge Pratt issued injunctions in these cases 
similar to the one issued on May 7, 1976, in Union Carbide. 

On July 8, 1976, the court granted the defendants motion for an 
extension of time to file an answer until 20 days after a decision by 
the U.S. Court of Appeals in Ashland Oil. 

On September 20, 1976, the U.S. Court of Appeals issued its 
decision in Ashland Oil Co. v. FTC, essentially affirming the deci- 
sion of the District Court that the materials could be turned over 
to a committee of Congress, without violating 15 U.S.C. § 46(f). The 
Court of Appeals in Ashland then entered a stay of its order until 
it could rule on a motion for rehearing. 

On October 1, 1976, Judge Pratt continued the temporary re- 
straining orders in Union Carbide, Exxon, and Kerr-McGee until 
either he disposed of Union Carbide's motion for a preliminary 
injunction or the Appeals Court removed its stay in Ashland Oil. 

On October 15, 1976, defendants filed their motions to dismiss, 
based upon the disposition in Ashland Oil. 

On March 2, 1977, the Appeals Court denied the motion for 
rehearing in Ashland Oil. 

On March 29, 1977, the court in Union Carbide, Exxon, and Kerr- 
McGee concluded that the transmission of data from the FTC to a 
Congressional committee "does not constitute public disclosure 
within the meaning of * * * 15 U.S.C. (Supp. V) § 46(f); and that 
such transmission in this case would not cause irreparable harm to 
the plaintiff," citing Ashland Oil. The court denied the motions for 
summary judgment, granted defendants' motions to dismiss and 
dismissed the cases with prejudice, denied as moot the plaintiffs' 
motions for a preliminary injunction, and denied the plaintiffs' 
requests to stay the orders pending appeal. 

X n iv arc , h 29 ' 1977 > a11 thr ee plaintiffs filed notices of appeal. 

On March 30, 1977, the U.S. Court of Appeals for the District of 
m n /xt c ° nsolid ated the appeals of Exxon (No. 77-1302), Kerr- 
McGee (No. 77-1303), and Union Carbide (No. 77-1304) for purposes 
or appeal and stayed the order of the District Court. In addition, 
wwu-. 6 ^ udlciar y Committee was asked to advise the court 

On M q ^l 1 sought the data originally requested. 
nrr^i!? ay ' 77 ' a m °tion by the three companies to expedite the 

O M ngS WaS denied - 
tion* fo- y - 6 ' 19 - 77, the A PP e als Court denied the companies mo- 
Ma Trr^ ™ n i o^T? or sta y Pending appeals and vacated its stay of 
MarKinrlA } he Distric t Court's order. Chief Judge George E. 

trvinnon considered it improper to surrender this material to 



58 

any Member of Congress on a mere request, but felt he was bound 
by the decision in Ashland Oil 

On August 26, 1977, a per curiam order was filed dismissing 
appellant's motion for injunction pending appeal as moot. 

On September 30, 1977, Congressman John E. Moss filed a 
motion for leave to file a brief as amicus curiae. 

On October 25, 1977, a Clerk's order was filed granting Congress- 
man Moss' motion for leave to file a brief as amicus curiae and 
giving appellants 14 days to file a brief in response. 

Congressman Moss' brief as amicus curiae and appellant's brief 
in response thereto were both filed on October 25, 1977. 

The consolidated appeals were argued on February 13, 1978. 

The Court of Appeals issued its opinion on October 19, 1978, 
affirming the judgment of the District Court in its entirety. In the 
opinion for the court filed by Circuit Judge MacKinnon, the ques- 
tion at issue was posed as whether any protective measures 
should be imposed on the FTC with respect to the divulging to 
Congress of "trade secrets" obtained by the FTC under the com- 
pulsion of a subpoena. 

The opinion noted that some of the information that the appel- 
lants sought to protect, specifically data concerning Union Car- 
bide's coal holdings, had already been disclosed, and that the 
appeal was moot as to this material. As to the issues which were 
not moot, the status of as yet undivulged material, the request for 
notice prior to disclosure, and the request for steps to be required 
to ensure that Congress keep such trade secret information confi- 
dential, Circuit Judge MacKinnon noted that most represented an 
attempt to have the court virtually engage in rulemaking for the 
FTC, which would be inappropriate and potentially overreaching. 

Turning to appellants' prayer for a permanent injunction re- 
quiring 10 days advance notice to affected parties before the FTC 
could disclose confidential data pursuant to Congressional re- 
quest, the Court of Appeals determined first that the material 
which the FTC proposed to divulge was fully within the scope of 
the ligitimate investigatory powers of Congress. In rejecting the 
request for a permanent injunction, Circuit Judge MacKinnon 
stated: 

For this court on a continuing basis to mandate an 
enforced delay on the legitimate investigations of Con- 
gress whenever these inquiries touched on trade secrets 
could seriously impede the vital investigatory powers of 
Congress and would be of highly questionable constitu- 
tionality. While normally reasonable advance notice can 
be required, in exigent circumstances Congress has full 
authority to issue forthwith subpoenas and formally re- 
quest immediate disclosure. To impose a mandatory 
notice period would skirt dangerously close to being at 
least the temporary "equivalent to an order quashing [the 
official request or subpoena] which is generally an imper- 
missible frustration of the congressional power to 
investigate * * * and hence [would raise] serious consti- 
tutional issues," United States v. American Tel & Tel Co., 
551 F.2d 384, 388 (D.C. Cir. 1976), citing, Eastland v. 



59 

United States Servicemen's Fund, 421 U.S. 491, 506 (1975). 
It would also abrogate the broad discretion of the Com- 
mission, e.g., FTC v. Lonning, 539 F.2d 202, 211 (D.C. Cir. 
1976) — through which the FTC can make use of its con- 
siderable expertise to balance the private and public in- 
terests involved — to formulate its own reasonable confi- 
dentiality protections, see FTC v. Anderson, 442 F. Supp. 
1118 (D.D.C. 1977). [Slip Opinion at 9; this report at 223. 
(Footnote omitted.)] 

To impose any mandatory advance notice would, the Court of 
Appeals concluded, run directly contrary to the spirit of the U.S. 
Supreme Court's decision in Eastland v. United States Service- 
men's Fund, supra, which emphasized the necessity for courts to 
refrain from interfering with or delaying the investigatory func- 
tions of Congress. 

Furthermore, the court found no indication that disclosure to 
the subcommittee would in any way harm the appellants, since 
such disclosure does not constitute public disclosure. Reaffirming 
its rationale in Ashland Oil Inc. v. FTC, 548 F.2d 977 (D.C. Cir. 
1976), the opinion stated that absent a showing that it is evident 
that Congress intends to make trade secrets divulged to it by the 
FTC publicly available, the FTC may, upon proper demand, re- 
lease such secrets to the Congress without the necessity of prior 
notice to the parties involved, unless such information was ob- 
tained upon an agreement to give prior notice. 

The Court of Appeals also rejected appellant's contention that 
the FTC should be required to obtain assurances that confidential 
information will not be publicly disclosed unless a majority of the 
members of the committee or subcommittee vote to do so. The 
opinion stated that for the court to establish such a requirement 
on the record in this case would clearly involve an unacceptable 
judicial intrusion into the internal operations of Congress. In 
regard to the possibility of leaks, the Court of Appeals stated: 

If, in fact, a Member or congressional staff member 
improperly "leaks" confidential data, the injured parties 
have a recourse against that individual directly, and the 
possibility of such action will serve to deter unjustified 
disclosure of trade secrets. Beyond provision for such 
suits, and in the absence of a concrete violation of law, 
rule or regulation, the courts are unable to aid the appel- 
lants in their request to oversee the activities of the legis- 
lature, allegations of the prevalence of "leaks" from some 
committees notwithstanding. The FTC should, and does, 
alert Congress when the information made available to it 
is confidential. In fact, some such cautionary statement 
could be impliedly required from the prohibition on the 
public disclosure of trade secrets imposed by 15 U.S.C. 
§ 46(f). If the Commission failed to alert Congress to the 
fact that information being supplied to it was by statute 
prohibited from "public" disclosure the Commission 
would violate a duty implicitly imposed upon it by the 
statute. To impose further protective procedures upon 
Congress, without some immediate threat of illegal dis- 



60 

closure, would impermissibly interfere with the legislative 
branch — an action we refuse to take. [Slip Opinion at 15; 
this report at 229. (Footnote omitted.)] 

The Court of Appeals also declined to restrict the right of the 
FTC to discuss with Members of Congress or their staff, prior to 
Congressional demand, the general nature of available data and 
thus inform Congress about relevant information of which it may 
be unaware. The opinion noted that barring some prohibition, 
governmental agencies may interchange information, and that 
most problems in this connection will be obviated if the Commis- 
sion merely notifies Congress whenever confidential trade secrets 
are requested or involved in potential delivery. 

The opinion emphasized that the denial of appellants' requested 
injunctive and declaratory relief designed to limit the manner in 
which the FTC may respond to a subpoena or formal request, did 
not address the question of when a formal request or subpoena 
has been properly issued. The Court of Appeals stated that it is 
important that disclosure of information can only be compelled 
by authority of Congress or its committees or subcommittees, not 
solely by individual Members; and only for investigation and Con- 
gressional activities. In regard to ordinary publicly available in- 
formation, there is no need to require the FTC to determine 
whether or not a request for such information is in fact a proper 
formal request or subpoena, which satisfies the requirement of 
the controlling Congressional rule. Trade secrets, however, may 
not be divulged except upon verified legally authorized requests, 
the opinion noted. While noting that it did not clearly appear that 
the request sent to the FTC by Senator Hart was a formal request 
authorized by the subcommittee, the Court of Appeals assumed 
that the FTC had verified that the request had been properly 
authorized. 

The opinion also noted that in appealing a refusal to grant 
equitable relief, appellants bore heavy a burden and that to grant 
such relief the Court of Appeals would be required to interfere in 
the operation of Congress and also to depart from traditional 
doctrine concerning the availability of equitable relief. 

On November 2, 1978, appellants filed a petition for rehearing 
and a suggestion for rehearing en banc, which were both denied 
on December 6, 1978. 

Status. — No further action has been taken. 

The complete text of the orders of the District Court are printed 
in the "Decisions" section of Court Proceedings and Actions of Vital 
Interest to the Congress, Part 2, August 15, 1977, at 247 (Union 
Carbide), 243 (Exxon), and 245 (Kerr-McGee). 

The opinion of the Court of Appeals is printed in the ' 'Decisions" 
section of this report at 215. 

Note. — In a footnote to its orders of March 29, 1977, the District 
Court stated that it was aware of footnote 63 in a decision by the 
Court of Appeals in FTC v. Texaco, No. 74-1547 (D.C. Cir. Feb. 23, 
1977). Footnote 63 states: 

We think it not unreasonable to require notice to the 
producers even in the event of a proposed release to Con- 
gress, since the circumstances surrounding such a disclo- 



61 

sure cannot presently be ascertained. [See Ashland Oil v. 

FTC. 548 F.2d 977.] 

„i„j^- "w believe that action to be legally and 
K^il^ case at bar/' In Te.aco, the FTC 
L ^fnHprtaken an investigation to determine whether certain cor- 
Soltionf^ "violaLg Section 5 of the Federal Trade Commis- 
sion Act by deliberately understating gas reserves in southern 
T nuis^na After an informal investigation effort proved inad- 
equTte the Bureau of Competition of the FTC determined that the 
issuance of subpoenas would be necessary, and on June 3, 1971 the 
Commission issued a resolution directing the use of compulsory 
process in a nonpublic investigation. The companies refused to 
comply with the subpoenas which were subsequently issued, and 
the FTC filed petitions for enforcement in the Federal District 

The companies argued that the accuracy of the gas reserves 
estimates had already been determined by the Federal Power Com- 
mission in ratemaking proceedings before that body prior to 1971, 
and therefore it was improper for the FTC to subpoena documents 
for the same purpose. The District Court agreed, and determined, 
in general, that the FTC could only receive documents from 1969- 
71 and could use them only to investigate the possibility of a 
conspiracy in reporting reserves, but could not use them to deter- 
mine reserves. In addition the court ruled that the documents used 
in that investigation could only be reviewed by FTC personnel 
assigned to that investigation, and had to be returned to the com- 
panies at the conclusion of the investigation, unless the court ruled 
otherwise. 

A Court of Appeals panel upheld the decision of the District 
Court, but the panel's decision was vacated by the en banc Court of 
Appeals when it decided to rehear the case en banc. Among the 
parts of the District Court's order which the en banc court modified 
in its opinion and order of February 23, 1977, was the part dealing 
with protection of confidentiality of the information claimed by the 
companies. The en banc court concluded that until the FTC had a 
chance to review the documents and rule on specific requests of 
confidentiality the District Court's order was premature and im- 
proper. They continued: 

Accordingly, we accept with some modifications, the FTC's 
proposed confidentiality protection, which would provide 
notice to the producers of any FTC decision. Specifically, 
we order that the FTC not disclose any of the documents 
produced which a company designates as confidential to 
any person [fn. 63] outside the employ of the FTC (other 
than an outside consultant retained by the FTC who has 
agreed not to disclose the documents) without first giving 
the company ten days' notice of its intention to do so. Such 
a procedure would, of course, provide an opportunity for 
judicial review at some later date, if the producers believe 
that a particular proposed disclosure is improper. [FTC v. 



62 

Texaco, No. 74-1547 (D.C. Cir. Feb. 23, 1977); Slip Opinion 
at 43-44.] 

United States v. Berrellez 

Cr. No. 78-00120-01 (D.D.C.) 

Brief. — On March 20, 1978, a six-count information was filed in 
U.S. District Court for the District of Columbia against Robert 
Berrellez. The first count charges the defendant with a violation of 
18 U.S.C. § 371 (Conspiracy). Specifically, Mr. Berrellez is charged 
with conspiring with Harold V. Hendrix, who is not charged in the 
information, and other persons from March 1972 to March 21, 1973, 
to: (1) obstruct a proceeding of the Subcommittee on Multinational 
Corporations of the Committee on Foreign Relations of the U.S. 
Senate (hereinafter "Subcommittee"), (2) commit perjury, and (3) 
defraud the United States of and concerning its right to have the 
business of the Subcommittee conducted honestly and impartially. 
The second count charges the defendant with violating 18 U.S.C. 
§ 1505 (Obstruction of Proceedings) by giving false and blatantly 
evasive testimony before the Subcommittee concerning communica- 
tions and relationships between employees, officers, and directors 
of the International Telephone and Telegraph Corporation (herein- 
after "ITT") and Central Intelligence Agency (hereinafter "CIA") 
officials and communications and relationships between employees, 
officers and directors of ITT and certain Chileans. The third and 
fourth counts charge defendant with violating 18 U.S.C. § 1621 by 
committing perjury before the Subcommittee. The fifth count 
charges the defendant with perjury before a panel of arbitrators of 
the American Arbitration Association (hereinafter "Panel"). Mr. 
Berrellez had testified in June 1974, before the Panel, which was 
seeking to ascertain, in the course of conducting an arbitration 
proceeding, what activities of ITT were undertaken in Chile and 
elsewhere with regard to the 1970 Chilean Presidential election. On 
the basis of the same testimony upon which count five is based, the 
sixth count charges Mr. Berrellez with violating 18 U.S.C. § 1001 by 
knowingly and willfully making false and fictitious statements and 
representations as to material facts in connection with a matter 
within the jurisdiction of an agency of the United States, specifical- 
ly, the Overseas Private Investment Corporation. 

Defendant pleaded not guilty on March 29, 1978. 

On April 27, 1978, defendant moved to dismiss the information. 

Mr. Berrellez' motion to dismiss was argued on August 18, 1978, 
and taken under advisement. On August 21, 1978, the motion to 
dismiss was denied. 

On September 29, 1978, Mr. Berellez moved to dismiss counts 5 
and 6 of the information for failure to state an offense against 
the United States. The motions to dismiss counts 5 and 6 were 
denied on October 18, 1978. 

On October 23, 1978, the oral motion of the Government to 
strike various alleged overt acts from the information was heard 
and granted. 

At the status call on October 30, 1978, the trial was continued 
until a ruling from the Court of Appeals in regard to mandamus. 



63 

On November 8, 1978, the Government moved in the District 
Court to amend pages 4 through 7 of the information to reflect 
the changes made by the oral motion of October 23, 1978. 

Status.— The case is pending before the District Court. 

United States v. Gerrity 

Cr. No. 78-00121-01 (D.D.C.) 

Brief. — On March 20, 1978, a six-count information was filed in 
U.S. District Court for the District of Columbia against Edward J. 
Gerrity, Jr. The first count charges the defendant with violating 18 
U.S.C. § 1505 (Obstruction of Proceedings) by giving false and bla- 
tantly evasive testimony before the Subcommittee on Multinational 
Corporations of the Committee on Foreign Relations of the United 
States Senate (hereinafter "Subcommittee") in March and April of 
1973. The testimony was given in the course of an investigation 
being conducted by the Subcommittee into actions by or on behalf 
of the International Telephone and Telegraph Corporation (herein- 
after "ITT") in relation to the course of the Presidential election in 
Chile in 1970. The second and third counts, also arising from 
defendant's testimony before the Subcommittee, charge him with 
violating 18 U.S.C. § 1621 (Perjury). The fourth count charges Mr. 
Gerrity with a violation of 18 U.S.C. § 1622 by suborning perjury by 
Harold V. Hendrix in testimony before the Subcommittee. The fifth 
count charges the defendant with perjury before a panel of arbitra- 
tors of the American Arbitration Association (hereinafter "Panel"). 
Mr. Gerrity had testified in June 1974, before the Panel, which was 
seeking to ascertain what activities of ITT were undertaken in 
Chile and elsewhere with regard to the 1970 Chilean Presidential 
election. On the basis of the same testimony upon which count five 
is based, the sixth count charges Mr. Gerrity with violating 18 
U.S.C. § 1001 by knowingly and willfully making false and fictitious 
statements and representations as to material facts in connection 
with a matter within the jurisdiction of an agency of the United 
States, specifically, the Overseas Private Investment Corporation. 

Defendant pleaded not guilty on April 28, 1978. 

On May 19, 1978, the Government moved for a protective order 
and filed its response to Mr. Gerrity's motion for a bill of particu- 
lars. 

Defendant moved on June 2, 1978 to dismiss Count 1 for failure 
to state a violation of Title 18 U.S.C. § 1505 and on grounds of 
vagueness; to dismiss Counts 2 and 5 on grounds of duplicity; to 
dismiss Count 4 on grounds of improper venue; to dismiss Counts 2, 

3, and 4 on grounds of incompetency of the tribunal and immateri- 
ality of the inquiry; to dismiss Counts 5 and 6 for failure to state 
an offense against the United States and for failure of a material 
matter; and to dismiss Count 6 as inappropriate in this informa- 
tion, or in the alternative, to force the Government to elect be- 
tween Counts 5 and 6. Mr. Gerrity also moved on June 2, 1978 to 
dismiss the information on the ground that his waiver of the 
constitutionally-required indictment was ineffective. 

On August 18, 1978, at a hearing on Mr. Gerrity's motions to 
dismiss, the Government stated that it would not prosecute Counts 

4, 5 and 6 of the information. Therefore, the motions pertaining to 



64 

those counts were not argued. The motion to dismiss the entire 
information because of ineffective waiver of indictment was sub- 
mitted on pleadings. The other motions attacking the information 
were argued and taken under advisement. The motions were 
denied on August 21, 1978. 

On September 27, 1978, the Government moved to dismiss 
Counts 4, 5 and 6 of the information. The counts were dismissed 
on October 5, 1978. 

On November 8, 1978, the trial which had been set for Decem- 
ber 4, 1978, was continued to a day not less than 45 days after a 
verdict or other resolution in United States v. Berrellez (Cr. 78- 
120). 

Status. — The case is pending before the District Court. 

Holy Spirit Association for the Unification of World Christianity et 
al v. Fraser et al 

Civil Action No. 78-1153 (D.D.C.) 

Brief. — This suit was filed in the U.S. District Court for the 
District of Columbia on June 22, 1978. Plaintiffs are the Holy Spirit 
Association for the Unification of World Christianity, (hereinafter 
"the Unification Church") and Bo Hi Pak, a South Korean citizen. 
Named as defendants in the suit are Donald M. Fraser, a U.S. 
Representative from Minnesota and chairman of the Subcommittee 
on International Organizations of the House Committee on Inter- 
national Relations (hereinafter "Subcommittee") and two staff 
members of that Subcommittee, Edwin H. Grogert and Martin J. 
Lewin. 

The complaint contains two counts. The first count alleges a 
conspiracy by defendants to deprive the plaintiffs and the members 
of the Unification Church of their constitutional rights. Specifical- 
ly, it is claimed that defendants and other unnamed individuals 
have conspired to deprive plaintiffs and "all persons associated 
with the Unification Church and Bo Hi Pak" of their rights of free 
speech, freedom of association, freedom of expression and freedom 
of religion. Plaintiffs allege that Congressman Fraser distributed 
defamatory materials regarding plaintiff, attempted to "deceive 
and trick" Bo Hi Pak during Pak's testimony before the Subcom- 
mittee, caused the payment of fees to witnesses who testified before 
the Subcommittee, and leaked, or permitted leaking of testimony 
given by Bo Hi Pak in Executive Session. The plaintiffs claim that 
these activities, in addition to violating their rights of freedom of 
religious exercise and association, damaged their reputation and 
resulted in financial damage to them due to curtailment of their 
activities and a reduction in financial contributions to the Unifi- 
cation Church. As relief under the first count, plaintiffs seek an 
injunction barring defendants from violating or conspiring to vio- 
late plaintiffs' rights under the First, Fourth, or Fifth Amendments 
and $5 million in compensatory damages and $10 million in puni- 
tive damages. 

The second count asserts that defendants have deprived plaintiffs 
of their constitutional rights. It is also specifically alleged, in addi- 
tion to the acts alleged in count one, that defendants Grogert and 



65 

Lewin, representing themselves as architects, gained entry to a 
Washington, D.C., Unification Church building. 

Plaintiffs claim that as a result of this action by Grogert and 
Lewin, their rights to the free expression and exercise of their 
religion were abridged, their right of free association was impaired, 
they were subject to a warrantless search, and they were deprived 
of the due process of the law. Plaintiffs contend that the activities 
complained of in count two also resulted in damage to their reputa- 
tions and financial harm. Their demands include an injunction, $5 
million in compensatory damages and $10 million in punitive dam- 
ages under count two, the same relief demanded under count one. 

On October 10, 1978, defendants moved to dismiss the com- 
plaint or, in the alternative, for summary judgment. 

Status. — The case is pending in the District Court. 

In re Beef Industry Antitrust Litigation 

No. 78-3344 (Fifth Cir.) 

Brief. — In the course of conducting investigations of marketing 
restrictions and unfair competition in the beef industry, the Sub- 
committee on Oversight and Investigation of the House Committee 
on Interstate and Foreign Commerce and the Subcommittee on 
Small Business Administration and Small Business Investment 
Companies of the House Committee on Small Business, issued sub- 
poenas duces tecum to some of the plaintiffs in In re: Beef Industry 
Antitrust Litigation. At least some of the documents sought by the 
committees were subject to a protective order previously issued by 
the court on November 23, 1976. 

Those parties who were recipients of the committees' subpoenas 
asked the court to either clarify or modify its order to allow compli- 
ance with the committees' subpoenas. A hearing was held on the 
motion on March 22, 1978. On April 4, 1978, the motion was 
denied. 

On May 30, 1978, the Subcommittees and the Clerk of the House 
filed with the District Court a "Motion For Leave to File". In the 
motion, the Subcommittees and the Clerk supported plaintiffs' ear- 
lier motion for leave to comply with the Subcommittees' subpoenas. 

On July 27, 1978 the District Court held a hearing on the motion 
filed by the Subcommittees and the Clerk of the House. 

On August 17, 1978, United States District Judge Taylor, in a 
memorandum opinion, denied the motion of the Congressional mo- 
vants for clarification or modification of the protective order. Judge 
Taylor stated that the sole question was whether Congress can 
subpoena documents in the hands of a litigant who would not 
otherwise have them except for the discovery procedure of the 
Federal courts when there has been no showing of extraordinary 
circumstances. The memorandum opinion noted that the persons 
subpoenaed would not have had the documents but for the discov- 
ery rules of the Federal courts and that the Congressional movants 
had not based their motion on any extraordinary need for the 
documents to be subpoenaed from those particular individuals. 
Judge Taylor held that Congress, by subpoenaing the documents 
was interfering with the processes of a Federal court in an individ- 
ual case. Furthermore, the memorandum opinion stated, had a 



66 

protective order not been in force covering the documents, a 
motion for one would have been entertained by the court. 

On September 11, 1978, the Congressional movants filed a notice 
of appeal with the United States Court of Appeals for the Fifth 
Circuit of the denial of their motion for clarification or modifica- 
tion of the protective order. 

On November 27, 1978, the Congressional-appellants filed a 
motion that their appeal be separated from other appeals growing 
out of this multidistrict litigation, with which it was docketed; for 
expedited oral argument; and for an early decision as soon as 
practicable after oral argument. 

On December 4, 1978, appellee, Iowa Beef Processors, Inc., filed 
a memorandum in opposition to appellants' motion to expedite, 
on the grounds that appellants have not acted expeditiously them- 
selves and that appellants have made no showing to justify expe- 
dited treatment. 

On December 5, 1978, appellee, The National Provisioner, Inc., 
filed a motion to dismiss the appeal of the Congressional-appel- 
lants for lack of jurisdiction and as unauthorized. 

On December 7, 1978, United States Circuit Judge, Robert A. 
Ainsworth, Jr., issued an order, dismissing that portion of the 
Congressional-appellants' motion to separate their appeal, since 
the Clerk had separately docketed other appeals growing out of 
this multidistrict litigation; and granted that part of their motion 
to expedite subject to the classification of the case under the 
court's screening procedures. 

Status.— The appeal is pending before the U.S. Court of Appeals 
for the Fifth Circuit. 

The memorandum opinion of the District Court is printed in the 
"Decisions" section of Court Proceedings and Actions of Vital Inter- 
est to the Congress, Part 5, September 15, 1978. 

Iowa Beef Processors, Inc. v. Bag ley (Newly Reported Case) 

No. 78-1855 (Eighth Cir.) 
tt Brief '—On August 1, 1977, Iowa Beef Processors, Inc. (hereinafter 
"IBP") filed suit against a number of defendants in the United 
States District Court for the Northern District of Iowa (C.A. No. 
77-4040, N.D. Iowa). Named as defendants were Lex Hawkins, 
John O. Cochrane, and Hughes A. Bagley, among others. The com- 
plaint alleged that Mr. Bagley, a former vice president of IBP, had 
taken a number of documents with him when he left the employ of 
IBP in 1975. These documents allegedly contained confidential 
business information which would damage IBP's business if dis- 
closed. The complaint also alleged that Mr. Bagley had in fact 
? m 1 certain confidential information and records to Mr. Haw- 
k * n . s > Mr. Cochrane, and others in violation of both contractural 
obligations and common law fiduciary duties. Mr. Hawkins and Mr. 
Cochrane are lawyers who have been involved in a number of 
consolidated private antitrust suits brought by members of a group 
JS n A „f the Meat Price Investigators Association (hereinafter 

MriA J i against IBP. (See In re Beef Industry Antitrust Litigation 
is printed in this report.) 



67 

Chief Judge McManus, in an order issued February 13, 1978, 
deciding various pretrial motions, granted IBP's motion, which had 
been filed on October 28, 1977, for a protective order preventing 
disclosure of IBP's confidential business information and limiting 
its use to defense counsel and to Hawkins and Cochrane for pur- 
poses of the consolidated antitrust cases. 

In October 1978, the Subcommittee on SBA and SBIC Authority 
and General Small Business Problems (hereinafter "Subcommit- 
tee") of the Committee on Small Business of the United States 
House of Representatives (hereinafter "Committee"), served a sub- 
poena duces tecum on Mr. Bagley requiring him to produce a 
number of documents covered by the protective order. 

Mr. Bagley filed a motion on November 1, 1978, to lift the 
protective order or in the alternative for guidelines. On November 
13, 1978, IBP filed a brief in opposition to the motion. 

On November 24, 1978, Chief Judge McManus issued an order 
modifying the protective order to allow Mr. Bagley to comply with 
the subpoena. The order stated that the court could ascertain no 
great interference in proceeding with the suit by allowing the 
Committee to examine and copy the records as long as the original 
copies remained accessible to the parties in the suit. It was noted 
by Judge McManus that IBP was free to approach the Committee 
in regard to the scope of the use of the documents. 

On November 27, 1978, a subcommittee investigator took physi- 
cal possession of seven boxes of the documents. 

IBP filed a notice of appeal from the District Court's order lifting 
the protective order. The appeal was docketed on December 4, 1978. 
A petition for writs preserving appellate jurisdiction and a stay of 
the District Court's order was filed by IBP on December 4, 1978. On 
the same day, the District Court's order was stayed to and includ- 
ing December 16, 1978. The motion for a stay was argued on 
December 12, 1978. 

On December 14, 1978, the Court of Appeals, in a per curiam 
order, denied IBP's motion for a stay pending appeal and for ex- 
traordinary writs preserving appellate jurisdiction. The order ex- 
pressed the opinion that a stay of the District Court order was both 
inappropriate and unnecessary at that time. The "very limited" 
scope of Judge McManus' order and the fact that the protective 
order remained otherwise in effect were noted. The Court of Ap- 
peals considered the fact that disclosure was to be made to a 
subcommittee of the House of Representatives and stated: 

In regard to the disclosure to the Subcommittee, it has 
represented in its papers filed in this court and during 
oral argument that it has no intention of making public 
any of these documents, if ever, until after the House of 
Representatives begins its next session in January, 1979. 
In good faith, we must accept these representations made 
by members of a coordinate branch of government at face 
value. We are further assured that the Subcommittee and 
its Special Counsel will take all appropriate precautions to 
insure that these documents are disclosed only to the 
extent necessary to allow the Subcommittee staff to begin 
the job of collating and classifying the information con- 



68 

tained therein. In present circumstances any disclosure 
beyond the immediate needs of the Subcommittee and its 
staff would appear to be both unnecessary and a matter of 
a grave import for all concerned. 

Given the Subcommittee's representations to us and the 
limited nature of Judge McManus' order, we are of the 
opinion that granting a stay and compelling the return of 
the documents at this time is both unnecessary as a practi- 
cal matter and inappropriate as a matter of comity. Such 
action would inevitably, albeit erroneously, be viewed as 
an expression of our lack of faith in the Subcommittee's 
representations to us. Such an expression would be par- 
ticularly inappropriate in view of the Subcommittee's past 
cooperation with this court. [Iowa Beef Processors, Inc. v. 
Bagley, No. 78-1855 (8th Cir., Filed Dec. 4, 1978); Slip 
Opinion at 4-5; this report at 254.] 

Stating that the case presented jurisdictional and substantive 
questions and implicated fundamental concepts of legislative and 
judicial authority, the Court of Appeals deemed it appropriate that 
the case be heard on an expedited basis and ordered it scheduled 
for argument on the merits on January 9, 1979. 

Status. — The case is pending before the United States Court of 
Appeals for the Eighth Circuit. 

The order of the District Court of February 13, 1978 is printed in 
the "Decisions" section of this report at 237. 

The order of the District Court of November 24, 1978 is printed 
in the "Decisions" section of this report at 249. ' 

The per curiam order of the Court of Appeals of December 14, 
1978 is printed in the "Decisions" section of this report at 251. 

United States v. Powell 

Cr. No. 78-251 (N.D. Ga.) 

Brief. — Claude Powell, Jr., was charged with contempt of Con- 
gress, a violation of 2 U.S.C. § 192, in an indictment filed by a 
Federal grand jury on August 8, 1978 in the U.S. District Court for 
the District of Columbia. The indictment charges that on February 
6, 1978, Mr. Powell deliberately and intentionally refused and 
failed to appear to testify before the Subcommittee on the Assassi- 
nation of Dr. Martin Luther King, Jr. (hereinafter "Subcommit- 
tee") of the Select Committee on Assassinations (hereinafter "Com- 
mittee") of the U.S. House of Representatives, in defiance of a 
subpoena which had been issued on January 17, 1978 and served on 
Mr. Powell on January 20, 1978. According to the indictment, the 
subpoena had been issued in connection with information which 
had been obtained by the Committee and the Subcommittee to the 
effect that Mr. Powell and his brother Leon Powell had alleged 
that they had been asked in the fall of 1967 or the spring of 1968, 
in Atlanta, Ga., whether they might be interested in making a 
large sum of money by killing Martin Luther King, Jr. 

On September 27, 1978, the case was transferred to the U.S. 
District Court for the Northern District of Georgia. 



69 

On October 11, 1978, Mr. Powell was arraigned and at that time 
tendered a plea of guilty and filed a petition to enter a plea of 
guilty. 

On December 13, 1978, Mr. Powell was again arraigned. His 
plea of guilty was entered and he was sentenced to serve 1 month 
imprisonment and fined $100.00. The term of imprisonment was 
suspended and he was placed on probation for 3 months. 

Status. — No further action has been taken. 

Application of Senate Select Committee on Ethics 

Misc. No. 78-0275 (D.D.C.) 

Brief. — On September 1, 1978, the Senate Ethics Committee filed 
this application with the United States District Court for the Dis- 
trict of Columbia to secure the testimony of Daniel Minchew in the 
committee's investigation of Senator Herman Talmadge. The appli- 
cation sought a grant of immunity from prosecution without which 
Mr. Minchew would have refused to testify. 

The immunity statutes (18 U.S.C. §§ 6001-6005) provide that the 
Justice Department may have the order delayed for 20 days, allow- 
ing it to present to the court the evidence accumulated on the 
witness. This will enable the court to insure that the evidence 
given by the witness under the grant of immunity is not the 
foundation for any subsequent criminal action against the witness. 
The Justice Department was granted such a delay in this case. 

Status. — On September 20, 1978, an order granting immunity to 
Mr. Minchew and compelling him to appear and testify was issued. 

Application of House Select Committee on Assassinations (New 

Case) 

Misc. No. 78-0350 (D.D.C.) 

Brief.— On November 23, 1978, in the U.S. District Court for the 
District of Columbia, the Select Committee on Assassinations of the 
United States House of Representatives filed a petition for a writ 
of habeas corpus ad testificandum directed to the U.S. Marshals for 
the District of Columbia and the Eastern District of Missouri and 
the Chief of Police of St. Louis, Missouri, ordering the release of 
Mr. John Larry Ray, incarcerated at that time at the St. Louis City 
Jail, to testify on December 1, 1978, before the Subcommittee on the 
Assassination of Dr. Martin Luther King, Jr., of the Select Commit- 
tee on Assassinations. 

Status. — The writ of habeas corpus ad testificandum was ordered 
and issued on November 28, 1978. 



IV. Constitutional Powers of the Congress 

Chadha v. Immigration and Naturalization Service 

No. 77-1702 (9th Cir.) 

Brief. — This is a petition for review of an order of the Immigra- 
tion and Naturalization Service (hereinafter "INS"). The INS had 
promulgated an order which exempted the petitioner, Jagdish Rai 
Chadha, from deportation as an alien. That order was subsequently 
vetoed by the passage of a resolution by the U.S. House of Repre- 
sentatives. A new order which required Chadha's deportation was 
then issued. The petition challenges the constitutionality of the 
"one-House veto" by which the original order was overturned. 

As set out in petitioners' brief, the facts are these: Petitioner was 
born and raised in Kenya, although his race was East Indian. In 
1966, he was issued a passport to the United Kingdom. He was 
lawfully admitted to the United States as a student in 1966 and 
continuously resided in the United States since that time, except 
for one short trip to Canada. 

After obtaining B.S. and M.A. degrees from an Ohio university, 
he discovered that neither the United Kingdom nor Kenya would 
allow him to return because of his race. He moved to California in 
1971 to seek work but was unable to obtain work because he did 
not have lawful status in the United States. However, the petition 
asserts, he was able to meet expenses from personal savings and 
from financial help from his family overseas. 

Since his visa had expired in 1972, he was summoned to show 
cause why he should not be deported pursuant to § 241(a)(2) of the 
Immigration and Nationality Act (hereinafter "INA"), 8 U.S.C. 
§ 1251(a)(2). A hearing was held before an immigration judge on 
January 11, 1974, at which Mr. Chadha requested a suspension of 
deportation pursuant to § 244(a)(2) of the INA, 8 U.S.C. § 1254(a)(2). 
Evidence presented as to his good character was uncontested. 

On June 25, 1974, the immigration judge issued his decision, 
ordering that the deportation be suspended pursuant to § 244(a)(1) 
of the INA. 

Section 244(a)(1) of the INA provides that suspensions may be 
granted when an alien (1) has been physically present in the 
United States for at least 7 years immediately preceding his appli- 
cation, (2) is of good moral character, and (3) would suffer extreme 
hardship if deported. (Although this authority is granted to the 
Attorney General, it has been delegated to the "immigration 
judges," with an appeal to the Board of Immigration Appeals.) 

Once the decision to suspend deportation is made, notice of the 
action is transmitted to Congress with a detailed explanation and 
justification for the decision. The suspension does not become effec- 
tive until the close of the session of Congress following the one in 
which the decision is transmitted, and then it only becomes effec- 
tive if during both sessions neither House has passed a simple 

(71) 

37-148 O - 79 



72 

resolution disapproving the decision, pursuant to 8 U.S.C. 
§ 1254(c)(2). 

Mr. Chadha and five aliens whose deportation had been suspend- 
ed by immigration judges lost their suspensions when on December 
12, 1975, the House of Representatives passed H. Res. 926, 94th 
Cong., 1st Sess. (1975). 

On August 4, 1976, the immigration judge ordered Mr. Chadha 
deported in view of the House resolution, and on appeal to the 
Board of Immigration Appeals, the Board affirmed the order of 
deportation on February 11, 1977. 

Mr. Chadha filed a petition for review of the deportation order 
with the U.S. Court of Appeals for the Ninth Circuit on July 18, 
1977. The filing of the petition automatically stayed his deporta- 
tion. 

The petition challenges the constitutionality of the one-House 
veto. It argues that neither the constitutional provisions granting 
Congress the power to regulate immigration nor the * 'Necessary 
and Proper" clause empowers Congress to contravene other consti- 
tutional provisions, and it asserts that the one-House veto does this 
in three ways. First, it says, the one-House veto violates the separa- 
tion of powers doctrine. Petitioner claims the constitutional history 
of this doctrine demonstrates that one branch cannot perform the 
functions or control the performance of another, and that since the 
one-House veto allows a single House of Congress to perform non- 
legislative functions and control the actions of an executive agency, 
it is unconstitutional. 

Next, Mr. Chadha argues, the one-House veto deprives the Presi- 
dent of the opportunity to exercise his veto power under Article I, 
Section 7. The Framers of the Constitution intended that a single 
executive would be given the opportunity to veto every Congres- 
sional action having the effect of law, but, since the one-House veto 
is not subject to Presidential veto, it is unconstitutional. 

Finally, Mr. Chadha asserts that the one-House veto provision 
violates the requirement of a bicameral legislature. According to 
Mr. Chadha, the Framers of the Constitution intended that every 
power of the legislative branch not expressly granted to a single 
House must be exercised by both concurrently. Therefore, since the 
one-House veto provision allows a single House to make law with- 
out the concurrence of the other, it is unconstitutional. 

On October 27, 1977, respondent INS filed a suggestion to invite 
the submission of amici curiae briefs by the U.S. Senate and House 
of Representatives. 

Clerk's letters were sent on November 17, 1977, inviting the 
President of the Senate and the Speaker of the House to file briefs 
amicus curiae within 30 days. 

On February 27, 1978, an amicus curiae brief on behalf of the 
Senate, pursuant to Senate Resolution 338 of the 95th Congress, 
and a separate amicus curiae brief on behalf of Representative 
Frank Thompson, Jr., Chairman of the Committee on House Ad- 
ministration of the U.S. House of Representatives, were filed. Each 
of the briefs opposed Mr. Chadha's petition and contended, inter 
alia, that the one-House veto is constitutional and that Chadha 
lacked standing to challenge the constitutionality of the one-House 
veto. 



73 

The petition was argued on April 10, 1978. 

Status. — The petition is pending before the U.S. Court of Appeals 
for the Ninth Circuit. 

Nixon v. Sampson 
C.A. Nos. 74-1518, 74-1533, 74-1551 (D.D.C.) 

Brief. — Following the resignation of former President Richard M. 
Nixon, the special prosecutor's office advised counsel to President 
Ford and counsel to Mr. Nixon of its continuing interest in Presi- 
dential materials and tape-recorded conversations housed in the 
White House, the Executive Office Building, and elsewhere, which 
were relevant to investigations and prosecutions within the juris- 
diction of the special prosecutor. Thereafter counsel for President 
Ford requested an opinion from then- Attorney General William B. 
Saxbe on the issues of ownership of the Presidential materials and 
tapes and the responsibilities of the Ford Administration with re- 
spect to them. A response to that request indicated that in the 
opinion of the Attorney General, the Presidential materials and 
tapes belonged to Mr. Nixon, but the Government had a right to 
use said materials. Following that advisory opinion a "depository 
agreement" (Nixon/Sampson agreement) was signed by Mr. Nixon 
and Arthur F. Sampson, Administrator of the General Services 
Administration (hereinafter "GSA"), on September 7, 1974. 

Thereafter, Jack Anderson, a well-known columnist, and others 
filed a petition with GSA seeking access to these materials pursu- 
ant to appropriate provisions of the Freedom of Information Act. 
The petitions were denied by GSA. 

On October 17, 1974, Mr. Nixon filed a suit against Mr. Sampson 
and others in the United States District Court for the District of 
Columbia seeking a temporary restraining order and preliminary 
injunction to compel compliance with the Nixon/Sampson agree- 
ment and to prevent unauthorized access to the materials and 
tapes. Mr. Anderson, and the special prosecutor, and others moved 
to intervene, seeking a temporary restraining order and prelimi- 
nary injunction to prevent the implementation of the Nixon/Samp- 
son agreement. U.S. District Judge Charles R. Richey issued a 
temporary restraining order on October 21, 1974, prohibiting the 
implementation of the agreement until a full hearing could be held 
on Mr. Nixon's motion for a preliminary injunction. [Nixon v. 
Sampson, Civil Action No. 74-1518 (D.D.C.).] 

On October 21, 1974, a suit was filed by The Reporters Commit- 
tee for Freedom of the Press, and several other parties, to gain 
access to these materials. [The Reporters Committee for Freedom of 
the Press v. Sampson, Civil Action No. 74-1533 (D.D.C.).] 

Then, on October 24, 1974, Lillian Hellman and several other 
individuals also filed suit to gain access to the materials. [Hellman 
v. Sampson, Civil Action No. 74-1551 (D.D.C.).] 

Mr. Nixon filed a motion on October 29 to consolidate the three 
cases, which the court did by an order issued on October 31, 1974. 
[Hereinafter these three cases will be referred to as the "consoli- 
dated cases."] 

A petition for leave to participate as amici curiae in these cases 
was filed and granted on behalf of then-Senator Sam J. Ervin, Jr., 



74 

Senators Gaylord Nelson and Jacob Javits, then-Representative 
Wayne L. Hays, and Representative John Brademas on November 
11, 1974. The Congressional petitioners sought leave to participate 
in the proceedings in order to bring to the attention of the court 
1 'their intense interest — as Members of Congress having 'special 
responsibility with pending legislation dealing with the subject 
matter' before the court — in the maintenance of the status quo 
pending consideration by the Congress of matters falling within its 
primary and fundamental authority." [Memorandum of Ervin et al. 
as amici curiae, Nixon v. Sampson, Civil Action No. 74-1518 
(D.D.C.).] 

At the time of the filing of the Ervin petition the Senate had 
passed a bill, S. 4016, which, while making no determination as to 
the ownership of the Presidential materials, provided for the pres- 
ervation of access to materials by placing them under the control 
of the Administrator of GSA, with all the materials to remain in 
Washington, D.C. The bill had been transmitted by the Senate to 
the House and referred to the appropriate House committee which 
had not then had an opportunity to act on it. 

Each of the Congressional participants — the amici — bore a spe- 
cial responsibility with regard to this legislation. As noted in a 
memorandum prepared on their behalf: 

Amicus Ervin, Senator from North Carolina, is Chair- 
man of the Senate Committee on Government Operations, 
which has jurisdiction over such legislation in the Senate. 
Amicus Nelson, Senator from Wisconsin, is the sponsor of 
the pending bill. Amicus Javits, Senator from New York, 
is an original co-sponsor thereof. Amicus Hays, Repre- 
sentative from Ohio, is Chairman of the Committee on 
House Administration, which has jurisdiction over such 
legislation in the House. Amicus Brademas, Representative 
from Indiana, is Chairman of the relevant Subcommittee 
of the House Administration Committee. [Id.] 

The action sought by the amici was set out in this language: 

Amici respectfully urge that the safeguarding of these 
materials pending Congressional action is a matter of the 
most compelling public interest. Accordingly, in light of 
these considerations of fundamental significance to amici 
and their colleagues in the legislative branch, amici urge 
that the Court grant a preliminary injunction to maintain 
the status quo. Such an injunction will insure an opportu- 
nity for orderly consideration of the issues by the repre- 
sentatives of the public in the exercise of their special 
Constitutional responsibilities as trustees of the people. It 
will insure that nothing untoward can happen to these 
materials while the people's representatives decide how 
best to exercise their responsibilities. [Id.] 

A separate motion by Representative Elizabeth Holtzman for 
leave to file an amicus brief was also granted on November 11, 
1974. Although the Holtzman petition fully supported the status 
quo position of the Ervin petition, Ms. Holtzman's memorandum 
was submitted for another purpose— to call to the court's attention 



75 

• „;«oi iccnp in this action was the ownership of 

'! ie ' aCt th "nd D e apers M Holtzman contended that since the At, 
the tapes and papers vis . no , hi opinion in writing that 

torney General had a ^ea d y ^pressed n P ^ ^ ^ 

t^^i^^^^z 1 t Justi r w h ? uld 

le\ei 01 v ^* artion brought by Mr. Nixon— to obtain 

eTheTtn^ ^ ^ »™^ wMc * ^ 

hi «nd the "Attorney General already agreed were his-would be 
iLthB^L^^reaver, she maintained that the matter was 
further complicated because the Department was currently repre- 
senting Mr. Nixon in several suits brought against him while he 
was President, thus raising an ethical question as to whether it 
could represent his adversary (the United States) in litigation oyer 
the ownership of the papers and tapes in question. To remedy the 
situation Ms Holtzman informed the court that she intended to 
introduce legislation to provide for a Special Counsel, in lieu of the 
Department of Justice, to represent the United States in all litiga- 
tion relating to the ownership of the papers and tapes at issue in 

Judge Richey held a hearing on the petitions on November 15 
and 18, 1974, but withheld any decision and asked counsel for 
amici to provide him with additional information regarding the 
effect of the pending lawsuit on the bill then before the Congress. 

Subsequently, after a series of amendments, the Congress passed 
S. 4016, on December 9, 1974. The bill, the Presidential Recordings 
and Materials Preservation Act (hereinafter "Act"), was signed into 
law on December 19, 1974 [Pub. L. 93-526]. 

On the day after the Act went into effect, Mr. Nixon brought an 
action in the U.S. District Court for the District of Columbia to 
enjoin its enforcement on the grounds that it transgressed the 
Constitution. [Nixon v. Administrator of General Services, Civil 
Action No. 74-1852 (D.D.C.), filed Dec. 20, 1974.] At the same time, 
Mr. Nixon asked that a three-judge court be convened pursuant to 
28 U.S.C. §§ 2282 anu 2284 to hear and determine the constitution- 
al claims asserted. The case was assigned to Judge Richey, before 
whom the consolidated cases were then pending. The same issues, 
namely, the ownership of the materials and tapes and privilege 
against their disclosure, which were raised in the consolidated 
cases, were then extended to Mr. Nixon's more recent challenge. 
On January 3, 1975, Mr. Nixon moved for a preliminary injunction 
against operation of the Act. 

It was alleged that on five separate occasions, during the 5 weeks 
following institution of Mr. Nixon's action of December 20, 1974, 
Mr. Nixon had requested Judge Richey to initiate the statutory 
procedure leading to the formation of a District Court of three 
judges. During that period, Judge Richey was preoccupied with the 
consolidated cases and planned to complete work on them before 
turning his attention to the challenge case. [Nixon v. Administrator 
of General Services, supra.] 

Having failed to convince Judge Richey that the appointment of 
a three-judge court took priority in this matter, Mr. Nixon filed a 
petition for a writ of mandamus in the U.S. Court of Appeals for 
the District of Columbia circuit, directing Judge Richey to grant 
the application for a three-judge court immediately and give the 



76 

challenge case priority over the consolidated cases as assertedly 
required by § 105(a) of the Act. [Nixon v. Rickey, No. 75-1063 (D.C. 
Cir.).] 

The Appeals Court, in a per curiam order and opinion filed 
January 31, 1975, denied Mr. Nixon's petition, stating that the 
issuance of a writ of mandamus was unnecessary. It held, however, 
that Judge Richey erred in delaying action on the application for a 
three-judge panel. Although the court stated that an application 
for the convening of such a court is statutorily entitled to expedi- 
tious treatment under 28 U.S.C. § 2284, it held that beyond these 
considerations, the Act requires the trial judge to give priority to 
such an application. It declared: 

Beyond these considerations, the Recordings and Materi- 
als Act independently supports petitioner's claim that the 
District Judge should have acted weeks ago on the three- 
judge application. Section 105(a) of the Act confers upon 
the District Court for the District of Columbia "exclusive 
jurisdiction to hear challenges to the legal or constitution- 
al validity of this title," and specifically provides that 
"[a]ny such challenge shall be treated by the court as a 
matter requiring immediate consideration and resolution. 
* * *" (emphasis supplied). It is clear that the case for 
which petitioner sought the three-judge court was a "chal- 
lenge to the legal or constitutional validity of the Act. It 
is equally clear that, as an integral part of his "challenge," 
petitioner's application for such a court was "a matter 
requiring immediate consideration and resolution. * * *" 
In these views, we need not consider contentions by one of 
the amici curiae that §§ 2282 and 2284 are inoperable in 
the situation at bar. [Nixon v. Richey, 513 F.2d 427, 429 
(1975).] 

Although the court acknowledged the propriety of the manda- 
mus remedy under the circumstances, it saw no occasion for issu- 
ance of a writ, since, having advised the district judge of the 
relevant law, it assumed the lower court would proceed in accord- 
ance with the appellate opinion. 

On the same day the Appeals Court issued its order and opinion, 
January 31, 1975, Judge Richey released a 98-page opinion in the 
consolidated cases. [Nixon v. Sampson, 389 F. Supp. 107 (D.D.C. 
1975).] At the same time, Judge Richey issued a summary and 
synopsis of his opinion which appears in its entirety as follows: 

SUMMARY AND SYNOPSIS OF OPINION OF CHARLES R. 
RICHEY, UNITED STATES DISTRICT JUDGE 

A. Introduction 

These consolidated cases present a unique controversy, 
the heart of which concerns the ownership of and the right 
to assert or waive a privilege with respect to the "Presi- 
dential materials and tape-recorded conversations" of the 
Nixon Administration. 



77 

These actions are before the Court on the following mo- 
tions: plaintiff Nixon's motions to dismiss the Hellman, et 
al, and Anderson suits for lack of standing; the govern- 
ment defendant's motion to dismiss all the actions, except 
that by the Special Prosecutor, on the ground that they 
are moot; and on motions for summary judgment or par- 
tial summary judgment by plaintiffs Anderson, The Re- 
porters Committee for Freedon of the Press, et al, Lillian 
Hellman, et al, and the Special Prosecutor, on his counter- 
claim for declaratory relief, and as the intervenor-defend- 
ant in Nixon v. Sampson et al (C.A. No. 74-1518). 

B. Standing 

The Court finds that plaintiffs Anderson, Hellman, et 
al, and The Reporters Committee for Freedom of the 
Press, et al, have standing to sue under the Freedom of 
Information Act and to challenge the Nixon-Sampson 
Agreement of September 7, 1974. 

C. Justiciability 

The Court finds that although the Presidential Record- 
ings and Materials Preservation Act of December 19, 1974, 
nullifies the Nixon-Sampson Agreement of September 7, 
1974, the said Act does not resolve the basic questions of 
ownership of the Presidential materials and tape record- 
ings, nor whether the former President may assert any 
privilege in regard thereto. Therefore, the questions of 
ownership and privilege must be decided by this Court. 
Furthermore, the Court has decided the additional issue 
raised by the pleadings with regard to Mr. Nixon's assert- 
ed Fourth Amendment claims. 

D. Summary Judgment 

Because the Court finds that there are no genuine issues 
of material fact in dispute in these proceedings, the parties 
are clearly entitled to summary judgment on the issues as 
a matter of law. 

E. Ownership 

1. The claim of ownership of former President Nixon to 
the "Presidential materials and tape-recorded conversa- 
tions" of the Nixon Administration is contrary to the gen- 
eral principle of law that that which is generated or kept 
in the administration and performance of the powers and 
duties of a public office belongs to the government. 

2. Former President Nixon's assertion of ownership of 
the documents, papers, tapes and other materials generat- 
ed or retained by himself or others on his behalf in the 
performance of his duties as the President of the United 



78 

States is contrary to the nature of the Office of the Presi- 
dent and the Constitution. 

3. The inherent continuity of the Office of the President 
negates a claim by former President Nixon that the inde- 
pendence of the Office requires that his assertion of owner- 
ship be sustained. 

4. There is no precedent which compels a finding that 
the ' 'Presidential materials and tapes" are the personal 
property of former President Nixon. 

5. The historial practice of past Presidents does not evi- 
dence a clear and constant recognition of ownership of the 
materials generated and retained in the conduct of the 
Office of the President. 

6. Congress has not sanctioned the personal ownership of 
"Presidential materials and tapes" generated and retained 
in the conduct of the Office of the President. 

7. Materials and tape-recorded conversations generated 
by Executive departments and agencies, although subse- 
quently transferred to and currently located in the White 
House, are ' "records" within the meaning of the Freedom 
of Information Act, and the public has a right of access 
thereto; however, materials and tape-recorded conversa- 
tions generated by the President and his personal aides 
are not "records" within the meaning of the Freedom of 
Information Act and, thus, are not available to the public 
under the Freedom of Information Act. 

F. Privilege 

A former President may not assert or waive the privi- 
lege which attaches to the confidential communications 
relating to the conduct of the Office of the President con- 
tained in Presidential materials and tape recordings as the 
privilege belongs to the government and may only be as- 
serted or waived by the incumbent President. 

G. Fourth Amendment 

1. Mr. Nixon's Fourth Amendment rights have not been 
violated because the November 9th Agreement is not a 
general warrant; nor does it subject him to an unreason- 
able search and seizure. However, under the circum- 
stances, Mr. Nixon's right of privacy must be afforded 
protection. 

2. Mr. Nixon's right to privacy does not entitle him to an 
injunction, but the Court has the power to protect his 
rights and those of the government by fashioning a 
remedy. 

H. Remedy 

The Court will require the following procedure with 
regard to effectuation of the November 9th Agreement, 
with regard to any requests for Presidential materials and 



79 

tape recordings made pursuant to court order or subpoena, 
or with regard to any request made under the Freedom of 
Information Act: 

1. Documents: The government defendants, or 
their agents, prior to any governmental examina- 
tion of the materials, shall permit Mr. Nixon or 
his counsel, (a) to segregate from any box or file, 
any document which is deemed personal, as de- 
fined by this Court; (b) to mark those portions of 
any document which are deemed private, as de- 
fined by this Court, without destroying or impair- 
ing the integrity of that portion or any other por- 
tion of the document; 

2. Tapes: The government defendants or their 
agents, prior to any governmental examination of 
the tape-recorded conversations, shall permit Mr. 
Nixon or his counsel to listen to those tape-record- 
ed conversations and, if any such tape-recorded 
conversation contains matters which are deemed 
private, as defined by this Court, then Mr. Nixon 
or his counsel shall so designate. 

This procedure is to be effectuated as follows: 

(a) The defendants shall specify one individual 
official of the government having expertise in the 
use of tape recording mechanisms (hereinafter, 
"operator") who at all times shall operate the 
mechanisms chosen by the operator for use in the 
procedure; and 

(b) The operator shall employ two tape record- 
ers, one (hereinafter, "recorder A") of which shall 
include the following features: (1) a single-listen- 
ing device, commonly known as head-phones, and 
(2) a digital "counter"; the other (hereinafter, "re- 
corder B") shall include the capacity to duplicate 
the recording from recorder A; and 

(c) When Mr. Nixon, or his counsel, are in the 
process of listening to the tapes, he shall utilize 
the single-listener device; and 

(d) The operator shall play the tape on Recorder 
A and duplicate the tape onto Recorder B, and 
when Mr. Nixon or his counsel deem any conver- 
sation or portion thereof as private, as defined by 
this Court, the operator shall stop recorder B at 
the commencement of that conversation or por- 
tion thereof so as not to record that conversation 
or portion thereof on the tape on recorder B at 
the termination of the conversation [or] portion 

un desi S nated as private, and the operator 
tK a- •' utilizin S the "counter," mark in a log 
the digital number of the commencement and ter- 
mination of the conversation or portion thereof 
designated as private. When a dispute arises with 
respect to the validity of a claim that a particular 



80 

item, or portion thereof, is private, upon notice of 
counsel, the Court shall examine the material or 
tape-recorded conversation, or portion thereof, in 
camera. This shall be followed by a hearing under 
the procedure set forth in the Opinion. 

The burden of proof as to whether a particular 
paper or tape-recorded conversation, or portion 
thereof, is personal, shall be borne by Mr. Nixon. 

Following the release of Judge Richey's opinion, Mr. Nixon sought 
reconsideration of the Appeals Court's earlier refusal of a writ of 
mandamus in Nixon v. Richey. 

The Appeals Court, in an opinion and order of February 14, 1975, 
continued its stay of January 31 of any order implementing Judge 
Richey's opinion. The court noted that since a three-judge panel 
was convened on February 5, 1975, to consider whether it properly 
should pass on the constitutional issue, no further action by the 
Appeals Court was needed in that regard. 

The Appeals Court noted that in its opinion of January 31, 1975, 
it took pains to alert Judge Richey to the peril of disposing of the 
consolidated cases before acting on Mr. Nixon's application for a 
three-judge panel. The court said it was obviously referring to the 
doctrine of collateral estoppel. [Under the doctrine, a final judg- 
ment in a prior suit precludes relitigation of material issues decid- 
ed in that suit.] The court continued that Mr. Nixon might be 
barred "from urging in the challenge case [Nixon v. Administrator 
of General Services, Civil Action No. 74-1852 (D.D.C.)] positions 
contrary to determinations which any decision of the consolidated 
cases might yield." [Nixon v. Richey, 513 F.2d 430, 438 (D.C. Cir. 
1975).] 

The Appeals Court proceeded to undertake a review of the histo- 
ry of the Act. 

The court stated that there were two goals Congress intended to 
accomplish and did accomplish by the passage of the Act: (1) insur- 
ing the Federal Government's interest in acquiring control over 
and power to protect the Presidential materials; and (2) speedy 
determination of possible constitutional challenges to the validity 
of the Act. 

The court noted that the three-judge requirement under proce- 
dures delineated in § 2284 of Title 28 of the United States Code was 
eliminated in conference and the measure, with § 105(a) of the Act, 
in its present form, which enables a single judge of the U.S. Dis- 
trict Court for the District of Columbia to hear any constitutional 
challenge to this Act,* was approved by the conference committee, 
and subsequently enacted into law. 

The Act did not, however, prohibit the petitioner from making 
an independent application under § 2284. The Court said: 

The remarks of Representative Brademas demonstrate 
that Congress intended to preserve single-judge jurisdic- 
tion over the consolidated cases, even for consideration 
and decision of challenges to the constitutional validity of 
the new Act in the event that such challenges were assert- 
ed in those cases. The remarks plainly contemplated, too, 
that any such challenge would utilize that opportunity. 



81 

But Representative Brademas was completely silent on the 
question whether such a challenge could only take that 
route, and so is the rest of the legislative history. 

We need not ponder whether Congress could validly 
have imposed the requirement that such a challenge could 
only be entertained in the consolidate cases. Nowhere in 
the legislative history is there any suggestion that §§ 2282 
and 2284 would not enable a separate suit presenting a 
constitutional challenge to the Act in the context of a 
demand for injunctive relief. It would have been simple for 
Representative Brademas to state, and indeed for Congress 
to require, that those sections would not apply to chal- 
lenges to the Act, had that been what Congress had in 
mind. Neither, however, was done, and the courts are left 
with the problem of determining whether petitioner's sepa- 
rate-suit challenge requires the usual three-judge court, 
particularly in light of the general canon of construction 
that repeal of a statute by implication is disfavored. 

It is much the clearer, however, that Congress deemed 
indispensible to its objectives the immediate consideration 
and resolution of any challenge to the constitutional or 
legal validity of any provision of the new Act. It was to 
mandate that degree of expedition that each of the bills 
initially passing the Senate and the House Contained the 
requirement that such challenges be heard and deter- 
mined by a three-judge court with direct appeal to the 
Supreme Court, and contained also the requirement that 
both courts proceed immediately to consider and resolve 
the challenges. 

******* 

But what Congress expected, and what § 105(a) as en- 
acted would permit, was that any and all challenges to the 
validity of the Act would be made in the consolidated cases 
before Judge Richey as a single judge, after appropriate 
amendments and additions of parties for that purpose 
were accomplished. What Congress apparently did not an- 
ticipate was that petitioner, instead of pursuing that route, 
would institute a new, separate suit grounded on §§ 2282 
and 2284 to test in orthodox fashion the constitutionality 
of the Act before a three judge rather than a single-judge 
tribunal. [513 F.2d at 422-443.] 

The court added that what Congress wanted "was speed in judi- 
cial handling of such [constitutional] 'challenges' whether properly 
to be considered and determined by three judges or one. Just as 
plainly, the text and history of § 105(a) indicate that Congress did 
not share the same concern for speed in the resolution of litigation 
not amounting to be a [constitutional] 'challenge'. That litigation is 
relegated to a position below the priority specified for 'challenge' 
actions." [513 F.2d at 444-445.] 

The court concluded by granting Mr. Nixon's petition for manda- 
mus and ordering a stay of the issuance of Judge Richey's order 
and of any further proceedings in the consolidated cases. 



82 

On April 2, 1975, Judge Richey removed himself from the consol- 
idated cases in which he was trial judge and from the challenge 
case before the three-judge panel of which he was a member. He 
was replaced in both proceedings by Judge Aubrey E. Robinson. 

In August of 1975, Rose Mary Woods, who was Mr. Nixon's 
personal secretary when he was President, moved to intervene in 
the action before the Court of Appeals for the purpose of having 
the stay over the proceedings in the consolidated cases amended to 
allow her to intervene in those proceedings. On September 2, 1975, 
the Court of Appeals allowed her intervention and granted her 
motion to amend its order of January 31, 1975. Miss Woods was 
then admitted in the consolidated cases as an intervenor plaintiff 
seeking to obtain certain personal papers of her own from the 
Administrator of GSA. On December 2, 1975, her motion for judg- 
ment on the pleadings was granted. The decision was immediately 
appealed to the Court of Appeals. [Nixon v. Sampson, Civil Action 
No. 75-2194 (D.C. Cir.)J 

In the meantime, the three-judge panel in the challenge case 
heard oral argument on September 22, 1975. In a unanimous opin- 
ion released on January 7, 1976, the three-judge court upheld the 
constitutionality of the Act on its face. [Nixon v. Administrator of 
General Services, 408 F. Supp. 321 (D.D.C. 1976).] A summary of the 
court's opinion appears as follows: 

Scope of Inquiry 

The court, responding to its duty to avoid constitutional 
questions whenever possible, considers only those ques- 
tions of the Act's constitutional validity that are immedi- 
ately ripe for resolution. As no regulations have yet taken 
effect, and as such regulations once effective are explicity 
made subject to judicial review, the court considers only 
the injury to constitutionally protected interests of Mr. 
Nixon that is allegedly worked by the taking of his presi- 
dential materials into custody and their screening by gov- 
ernment archivists.* * * 

Claims Relating to the Separation of Powers 

The court finds nothing in the separation of powers 
doctrine to support the contention that the legislature may 
not pass a statute in any way touching upon the preroga- 
tives of the Executive. The only genuine separation of 
powers claim is that the Act might invade the presidential 
privilege that attaches to the small fraction of the materi- 
als that genuinely implicate presidential confidentiality. 
Although the court thinks it doubtful that a former Presi- 
dent, rather than the incumbent, may assert such privi- 
lege, at the very least such a claim is entitled to relatively 
less weight in the balance of competing considerations. 
And the infringement upon presidential confidentiality 
caused by screening by trained and discreet government 
archivists, who have been employed to perform identical 
tasks for the materials of every President since Herbert 



83 

Hoover is very slight. The court finds, on the other hand, 
Irlr^Zt -had ample reason to mandate screening by 
^^m^aSv^AtbBr than control by Mr Nixon, 
who Tadcs their expertise and disinterestedness. The two 
most important of the interests served by preservation and 
responsible treatment of presidential materials are (1) 
mafttaining a complete and accurate historical record and 
(2) assuring the availability of the materials potentially 
needed for continuity in executive policymaking. Other 
interests served by the Act include informing the public 
about the Watergate matters and ensuring the availability 
of materials that may be relevant to legislative investiga- 
tions or judicial proceedings. Because of the manner in 
which personal materials are intermingled with official 
ones, comprehensive screening represents the only feasible 
manner of protecting these important interests. The court 
finds that the slight inroad on presidential confidentiality 
caused by such screening is outweighed by the need to 
further these important legislative objectives. * * * 

Claims Relating to Privacy 

It appears from the record that plaintiff can validly 
claim a privacy interest in only a small fraction of the 
materials. Yet due to the historical practice of de facto 
control by Presidents of presidential materials, the court 
finds that regardless of where ownership of the materials 
lies— a question that need not be reached — plaintiff has a 
reasonable expectation of privacy in these materials, an 
interest that is infringed even by mere screening by gov- 
ernment archivists conducted under legislation with retro- 
active application. In light of the intermingled nature of 
the materials, the court finds such infringement of privacy 
interests to be an inescapable concomitant of any attempt 
to serve the important legislative objectives underlying the 
Act. The private materials are far outnumbered by those 
that are nonprivate and related to those objectives. The 
court further finds that any invasion of privacy caused 
merely by archival processing — rather than by public 
access, which need not yet be considered — is not wide- 
ranging. In addition, less justification is needed when, as 
may be the case here, any invasion of privacy constituting 
a search and seizure does not serve law enforcement objec- 
tives. In light of these factors and the unavailability of less 
intrusive means of furthering the important legislative 
ends, the court concludes that any intrusion upon plain- 
tiffs privacy interests has adequate justification. * * * 

Freedom of Speech and Association 

Plaintiffs First Amendment claim is predicated upon 
the assumption that all materials — including those impli- 
cating privacy in political association — will be open to 
public access. The court finds no basis for that assumption. 



84 

Rather, reaching only that infringement of First Amend- 
ment interests caused by screening by government archi- 
vists, the court finds any injury to protected interests aris- 
ing from a confidential review process to be insubstantial. 



Equal Protection 

The court finds that any difference in treatment be- 
tween plaintiff and other Presidents is adequately justi- 
fied. As respects immediate past Presidents, their papers 
had already been deposited in presidential libraries where, 
on the whole, their availability to promote important gov- 
ernmental interests was assured. As respects current and 
future Presidents, legislating with respect to them risked 
disrupting current executive policymaking, and would be 
unwise before the Commission study of the sensitive and 
complex problems involved in regulating the records of 
federal officials had been completed. Only plaintiff has 
finished his service as President but has not yet estab- 
lished a presidential library. Prompt congressional action 
was reasonably deemed necessary to assure that the mate- 
rials would remain preserved, and to begin the lengthy 
process of reviewing and classifying them. Finally, Con- 
gress could legitimately consider plaintiff to be less likely 
than his immediate predecessors or successors to dispose of 
the materials responsibly. * * * 

Bill of Pains and Penalities 

There is, in the court's view, no evidence in the legisla- 
tive record to support the claim that the Act was designed 
to impose, or constitutes, punishment within the meaning 
of the Bill of Attainder Clause. The court finds there are 
other legislative objectives served by the Act which Con- 
gress could legitimately — and did — consider. Rather than 
possessing traditional indicia of a punitive enactment, the 
Act includes provisions that indicate a concern for plain- 
tiffs interests, provisions that are wholly inconsistent with 
the hypothesis of punitive intent. * * * 

The court ordered that the preliminary and permanent injunc- 
tive relief sought by Mr. Nixon be denied, and his complaint be 
dismissed as without merit. Pending the final disposition of any 
appeal of the decision, the defendants were enjoined from "process- 
ing, disclosing, inspecting, transferring, or otherwise disposing of 
any materials be they documents, papers, tape recordings or other 
items" which might fall under the provisions of the Act except for 
legal proceedings, inspection by Mr. Nixon or his designated agent, 
or use for current business by the executive branch. 

The court also noted that the Court of Appeals had stated in 
Nixon v. Richey, 513 F.2d at 448, that it would dissolve its stay of 
January 31, 1975, in the consolidated case proceedings, whenever 
the three-judge court indicated it believed the need for the stay no 



85 

longer existed. ''Having now entered judgment in this action, we 
are simultaneously requesting the Court of Appeals to dissolve the 
stay, thus permitting the consolidated cases to proceed in whatever 
manner seems fit in light of the possibility of appeals in this action 
* * *." [513 F.2d at 333.] 

The Court of Appeals removed the stay on the consolidated cases 
on February 5, 1976. 

On March 25, 1976, the Court of Appeals refused to grant a 
summary affirmance of Judge Robinson's December 2, 1975 order 
in the consolidated cases which granted summary judgment to 
Rose Mary Woods on her motion seeking return of certain papers. 
Pending a decision on the merits of the appeal, the court ordered 
the parties to stipulate those materials as to which no controversy 
exists as to Miss Woods' ownership, and to make intermittent 
reports to the court. The parties have made several such reports to 
the court. 

On March 5, 1976, Mr. Nixon filed with the Supreme Court a 
notice of appeal of the decision of the three-judge court. The case 
was argued before the Court on April 20, 1977. 

On June 28, 1977, the Supreme Court affirmed the three-judge 
court's decision upholding the constitutionality of the Act. Noting 
that no effective regulations under the Act had yet been promul- 
gated, and that after such regulations are promulgated they may 
be challenged under other provisions of the Act, the Court limited 
its considerations of the merits of Mr. Nixon's several constitution- 
al claims to those addressing the facial validity of those provisions 
of the Act requiring the Administrator of GSA to take custody of 
the materials and subject them to screening by Government archi- 
vists. 

Mr. Nixon had made the same constitutional arguments against 
the facial vailidity of the Act in the Supreme Court as he had 
made in the three-judge court. Writing for the Court, Justice Bren- 
nan reached the same conclusion as the three-judge court that each 
claim was without merit, although his analysis differed somewhat 
on some questions. 

The court rejected Mr. Nixon's assertion that the Act violated 
the separation of powers doctrine in that it infringed upon the 
President's right to control the operations of his office, and pointed 
out that neither former President Ford nor President Carter had 
supported this claim, and that under the Act the materials would 
remain at all times within the executive branch. Furthermore, 
there is abundant statutory precedent for the regulation and man- 
datory disclosure of documents in the possession of the executive 
branch, such as the Freedom of Information Act, and such regula- 
tion of materials generated in the executive branch has never been 
deemed to be an invasion of its autonomy. As for Mr. Nixon's 
"more narrowly defined claim that the Presidential privilege 
shields these records from archival scrutiny," the Court rejected 
the view that only the incumbent President may exercise the privi- 
lege, adding: 

[W]e think that the Solicitor General states the sounder 
view, and we adopt it: 



86 

"This court held in United States v. Nixon, [418 
U.S. 683 (1974)] that the privilege is necessary to 
provide the confidentiality required for the Presi- 
dent's conduct of office. Unless he can give his 
advisers some assurance of confidentiality, a 
President could not expect to receive the full and 
frank submissions of facts and opinions upon 
which effective discharge of his duties depends. 
The confidentiality necessary to this exchange 
cannot be measured by the few months or years 
between the submission of the information and 
the end of the President's tenure; the privilege is 
not for the benefit of the President as an individu- 
al, but for the benefit of the Republic. Therefore 
the privilege survives the individual President's 
tenure." [Brief for Federal Appellees 33.] [Slip 
Opinion at 20-21.] 

But, the court noted, again the fact that neither President Ford nor 
President Carter supported Mr. Nixon's claims detracted from his 
contention that the Act impermissibly intruded into the executive 
function. Besides, said the Court, clearly Mr. Nixon may assert 
executive privilege only as to those items which fall within the 
scope of the privilege recognized in United States v. Nixon, 418 U.S. 
683 (1974), and that means it would apply at most to only a small 
portion of the documents and recordings held in custody. In addi- 
tion, the Court noted that all it need rule on at this time was to 
what extent an initial screening and cataloging by Government 
archivists would infringe upon the privilege, and that all Presi- 
dents since Herbert Hoover had put their papers into Presidential 
libraries where they were subject to eventual disclosure. The Court 
concluded that the screening process contemplated by the Act did 
not constitute a more severe intrusion of Presidential confidential- 
ity than the in camera inspection approved in United States v. 
Nixon, and that if the guidelines adopted for review proved inad- 
equate to safeguard Mr. Nixon's rights or to prevent the usurpa- 
tion of executive powers, they could later be challenged in a specif- 
ic factual context. 

As for Mr. Nixon's claim that the Act violates his rights of 
expression and privacy under the First, Fourth, and Fifth Amend- 
ments, the Court found that: 

appellant has a legitimate expectation of privacy in his 
personal communications. But the constitutionality of the 
Act must be viewed in the context of the limited intrusion 
of the screening process, of appellant's status as a public 
figure, of his lack of any expectation of privacy in the 
overwhelming majority of the materials of the important 
public interest in preservation of the materials, and of the 
virtual impossibility of segregating the small quantity of 
private materials without comprehensive screening. When 
this is combined with the Act's sensitivity to appellant's 
legitimate privacy interests, see Sec. 104(a)(7), the unblem- 
ished record of the archivists for discretion, and the likeli- 
hood that the regulations to be promulgated by the Ad- 



87 

ministrator will further moot appellant's fears that his 
materials will be reviewed by "a host of persons," [Brief 
for Appellant 150], we are compelled to agree with the 
District Court that appellant's privacy claim is without 
merit. [Slip Opinion at 37-38.] 

The Court also agreed with the three-judge court that Mr. Nixon 
had a legitimate First Amendment rights claim that disclosure of 
the contents of certain conversations might cause some individuals 
to refuse to associate with him and would prevent him from being 
able to take inconsistent positions in the future. However, the 
Court also agreed that there was no reason to believe that his right 
to remove some of the politically sensitive documents before screen- 
ing would not be protected by the regulations which are to be 
adopted. 

Finally the Court addressed Mr. Nixon's claim that the Act was 
an unconstitutional bill of attainder proscribed by Article I, Section 
9 of the United States Constitution. In concluding that the Act was 
not a bill of attainder, the Court said: 

Appellant's characterization of the meaning of a bill of 
attainder obviously proves far too much. By arguing that 
an individual or defined group is attainded whenever it is 
compelled to bear burdens which the individual or group 
dislikes, appellant removes the anchor that ties the bill of 
attainder guarantee to realistic conceptions of classifica- 
tion and punishment. His view would cripple the very 
process of legislating, for any individual or group that is 
made the subject of adverse legislation can complain that 
the lawmakers could and should have defined the relevant 
affected class at a greater level of generality. Furthermore, 
every person or group made subject to legislation which it 
finds burdensome may subjectively feel, and can complain, 
that it is being subjected to unwarranted punishment. 
United States v. Lovett, [328 U.S. 303, 324 (1946)] (Frank- 
furter, J., concurring). However, expansive is the prohibi- 
tion against bills of attainder, it surely was not intended to 
serve as a variant of the Equal Protection Clause, invali- 
dating every act of Congress or the States that legislative- 
ly burdens some persons or groups but not all other plausi- 
ble individuals. In short, while the Bill of Attainder Clause 
serves as an important "bulwark against tyranny," United 
States v. Brown, [81 U.S. 436, 443 (1965)], it does not do so 
by limiting Congress to the choice of legislating for the 
universe, or legislating only benefits, or not legislating at 
all. 

Thus, in the present case, the Act's specificity— the fact 
that it refers to appellant by name — does not automatical- 
ly offend the Bill of Attainder Clause. Indeed, viewed in 
context, the focus of the enactment can be fairly and ra- 
tionally understood. It is true that Title I deals exclusively 
with appellant's papers. But Title II casts a wider net by 
establishing a special commission to study and recommend 
appropriate legislation regarding the preservation of the 
records of future Presidents and all other federal officials. 



88 

In this light, Congress' action to preserve only appellant's 
records in easily explained by the fact that at the time of 
the Act's passage, only his materials demanded immediate 
attention. The Presidential papers of all former Presidents 
from Hoover to Johnson were already housed in function- 
ing Presidential libraries. Congress had reason for concern 
solely with the preservation of appellant's materials, for 
he alone had entered into a depository agreement, the 
Nixon-Sampson agreement, which by terms called for the 
destruction of certain of the materials. Indeed, as the Gov- 
ernment argues, "appellant's depository agreement * * * 
created an imminent danger that the tape recordings 
would be destroyed if appellant, who had contracted phle- 
bitis, were to die." [Brief for Federal Appellee 41.] In short, 
appellant constituted a legitimate class of one, and this 
provides a basis for Congress' decision to proceed with 
dispatch with respect to his materials while accepting the 
status of his predecessors' papers and ordering the further 
consideration of generalized standards to govern his suc- 
cessors. [Slip Opinion at 4245 (footnote omitted).] 

In addition, said the Court, this Act could not be a bill of attain- 
der because, even if the specificity element were present, it lacked 
the forbidden legislative punishment aspect, which is something 
more than the possible burdensome consequences imposed by the 
Act upon Mr. Nixon. 

Justice Stevens concurred in the opinion for the Court, but said 
the Act raised serious questions under the Bill of Attainder Clause. 
Justice Stevens stated, however, because Mr. Nixon resigned his 
office under unique circumstances and accepted a pardon for of- 
fenses committed in office, that Mr. Nixon had put himself in a 
different class from all other Presidents and constituted a legiti- 
mate "class of one." Limiting himself to this case, and emphasizing 
that in his view this case is not a precedent for future legislation 
which is limited to one occupant rather than the Office of Presi- 
dent, Justice Stevens voted to affirm the three-judge court's deci- 
sion. 

Justice White concurred in all of the opinion of the Court except 
that part dealing with the bill of attainder claim, and agreed in the 
result reached by the Court on that claim because he believed the 
Act is not a bill of attainder in that it does not prescribe any 
punishment. He also concluded that contrary to the Court's deci- 
sion, all purely private materials should be returned to Mr. Nixon 
immediately, even if they have historical significance, since he does 
not believe that the Government is entitled to Mr. Nixon's purely 
private communications merely because it wants to preserve them 
and offers compensation. 

Justice Powell concurred in the judgment of the Court and in all 
parts of its opinion except those dealing with Mr. Nixon's claims 
relating to privacy and the Bill of Attainder Clause, because he 
was uncertain as to the reach of the discussion by the Court of the 
competing constitutional interests implicated by the Act. For rea- 
sons different from the majority's he concluded that the Act is 
consistent on its face with the separation of powers doctrine. He 



89 

first concluded that Congress had not acted beyond the scope of its 
constitutionally enumerated powers. This legislation serves the in- 
vestigative and informative needs of Congress he said, and it did 
not assume executive branch functions. As to the argument that 
the Act impaired the Presidential privilege of receiving confiden- 
tial communications, Justice Powell concluded that the fact that 
former President Ford, while he was in office, and now President 
Carter had both expressed the view that the Act furthered rather 
than hindered effective execution of the laws was dispositive of this 
issue. 

Justice Blackmun concurred in the decision of the Court for the 
same reasons as Justice Powell, but did not join in Justice Powell's 
opinion because for Justice Blackmun the opinions of the incum- 
bent Presidents were not dispositive. He agreed that their opinions 
were entitled to serious consideration, but pointed out that political 
realities and the often open hostilities between incoming and out- 
going administrations can influence a President's opinions. 

Chief Justice Burger dissented from the opinion and all conclu- 
sions of the Court. Title I of the Act violates the separation of 
powers doctrine in three ways, he said: first, Congress is compelling 
a President in the conduct of his office by forcing him to hand over 
his papers to the head of the GSA — a legislatively created agency; 
second, it is an attempt by Congress to use executive, not legisla- 
tive powers, by gaining control of executive materials; and third, it 
makes a sweeping modification of the historical practice and consti- 
tutional privilege of confidentiality every President has enjoyed 
since 1789. Furthermore, the Chief Justice stated that he did not 
believe that the fact that the Act applies to only one President who 
has left office, justified what would otherwise be unconstitutional if 
it applied to an incumbent. In addition, Title I breaches the need 
for confidentiality of advice given to the President, said the Chief 
Justice, and he predicted that the Court's decision would force 
advisers to future Presidents to be circumspect in articulating their 
views to the President. 

He also concluded that Title I intruded upon Mr. Nixon's right to 
privacy, violating the Fourth Amendment since it is a general 
warrant, and violating the First Amendment's freedom of speech 
and freedon of association provisions. 

Finally, the Chief Justice stated that in his opinion the Act 
violates the Bill of Attainder Clause, as it meets both criteria of a 
bill of attainder by singling out an individual and by meting out 
punishment to him. 

Justice Rehnquist also dissented, but since he believed the Act 
clearly violates the separation of powers doctrine, he limited his 
opinion to that issue. He concluded that the Act violated separa- 
tion of powers in that (1) it hinders the communications a Presi- 
dent will receive from advisers, foreign heads of state and ambassa- 
dors, Members of Congress, and others who deal with the White 
House, (2) it hinders the necessary flow of information to and from 
future Presidents, and (3) it intrudes upon the effective discharge 
by the President of his duties, which intrusion, when balanced 
against the asserted interests of Congress fostered by the Act, 
cannot permit the Act to be sustained. 



90 

On August 15, 1977, defendants moved to dismiss the consoli- 
dated cases as moot, in view of the Supreme Court's decision in 
Nixon v. Administrator of General Services. 

The consolidated cases were dismissed as moot by District Judge 
Robinson in an Order and accompanying Memorandum on Septem- 
ber 21, 1977. The Memorandum stated that no further examination 
of the ownership of the Presidential materials was necessary since 
the holding of the Supreme Court in Nixon v. Administrator of 
General Services had resolved that question. Resolution of the issue 
of access to the Presidential materials under the Freedom of Infor- 
mation Act was also held to be inappropriate within the context of 
the consolidated cases since the Preservation Act establishes a 
comprehensive scheme governing all access to Presidential materi- 
al. 

Notices of appeal from the order dismissing the consolidated 
cases were filed on November 18, 1977 by plaintiffs' Reporters 
Committee for Freedom of the Press, et ah 

On December 5, 1977, plaintiff-intervenor Woods moved the Dis- 
trict Court to vacate the December 5, 1975 stay of its order of 
December 2, 1975 releasing to plaintiff-intervenor Woods her 
papers and materials within the custody of the Federal defendants. 

The District Court denied the motion to vacate the stay on 
January 9, 1978. 

The appeals of the District Court order dismissing the consoli- 
dated cases were consolidated by the Court of Appeals on January 
16, 1978. 

On March 22, 1978, the Court of Appeals reversed the District 
Court's holding that certain documents asserted by Miss Woods to 
be her personal papers should be turned over to her. 

The Appeals Court determined that the criteria which had been 
used by archivists to determine that the documents sought by Miss 
Woods were her personal papers were not compatible with the 
purposes of the Presidential Recordings and Materials Preservation 
Act. The Court concluded that: 

Since an elaborate regulatory scheme has now been estab- 
lished by the Administration the most appropriate disposi- 
tion of this case is to dismiss appellee's suit without preju- 
dice, and to remand her to her administrative remedies. 
Should those remedies prove unavailing, she will be able 
at that time to seek judicial review, under Sec. 105(a) of 
the Act. [Slip Opinion at 14 (footnote omitted).] 

The consolidated cases were argued before the U.S. Court of 
Appeals for the District of Columbia on October 31, 1978. 

On December 21, 1978, the Court of Appeals issued its opinion 
reversing the District Court in the consolidated cases and re- 
manding the cases for further action. 

On the issue of whether the Materials Act provided the exclu- 
sive means for obtaining access to the recordings and materials, 
the Court of Appeals concluded it did not. The court noted that 
§ 104(d) of the Act declares: 

The provisions of this title shall not in any way affect the 
rights, limitations or exemptions applicable under the 
Freedom of Information Act, 5 U.S.C. § 552 et seq. 



91 

After quoting this provision and outlining its legislative history, 
the court concluded that the Materials Act did not bar processing 
of Freedom of Information Act requests for the Presidential ma- 
terials in question. 

As to the question of ownership which the District Court had 
determined was moot, the court declared: 

As the district court recognized, an issue is moot if it 
has lost its character as a present, live controversy. See 
Nixon v. Sampson, 437 F. Supp. at 655 (citing Diffenderfer 
v. Central Baptist Church, 404 U.S. 412, 415 (1972)); see 
generally Alton & Southern Railway v. I AM, 463 F.2d 872, 
876-77 (D.C. Cir. 1972). With respect to access under the 
FOIA, the ownership issue is not moot, because neither 
the Materials Act nor Nixon v. Administrator, 20 resolved 
the issue or changed its character. Accordingly, we hold 
that the ownership issue is not moot. 21 



20 The Supreme Court held that legal title to the Presidential materials 
was irrelevant to disposition of Mr. Nixon's constitutional claims. Nixon 
v. Administrator, 433 U.S. at 445-46 n.8. 

21 Although we hold that the ownership issue is not moot, the District 
Court is free to examine whether this request for declaratory action 
fulfills other justiciability requirements. Specifically, the District Court 
may wish to examine whether these plaintiffs have established their 
standing to litigate in a declaratory judgment action the question of 
whether the Government or Mr. Nixon is the owner of all these materi- 
als, see Duke Power Co. v. NRC, 46 U.S.L.W. 4845, 4848-49 (1978); Simon 
v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976), and whether 
the issue presented here is suitable for resolution by declaratory judg- 
ment; see Golden v. Zwickler, 394 U.S. 103, 108 (1969). Of course, to the 
extent that the ownership of particular materials becomes an issue in 
the course of litigating an FOIA request for those materials in this or 
any other case, the FOIA plaintiffs will have standing to litigate that 
ownership question as well as all other issues relevant to their claim. 

[Nixon v. Sampson (77-2125)]. 

[Slip Opinion at 14-15, this report at 270-271.] 

Status.— The cases are pending on remand in the U.S. District 
Court for the District of Columbia. 

The complete text of the decisions of the Court of Appeals and of 
Judge Richey are printed in the ''Decisions' ' section of the report of 
Court Proceedings and Actions of Vital Interest to the Congress, 
April 15, 1975. 

The complete text of the opinion of the three-judge District Court 
is printed in the " Decisions" section of the report of Court Proceed- 
ings and Actions of Vital Interest to the Congress, April 15, 1976. 

The complete text of the Supreme Court's opinion is printed in 
the "Decisions" section of the report of Court Proceedings and 
Actions of Vital Interest to the Congress, Part 2, August 15, 1977. 

The complete text of Judge Robinson's memorandum of Septem- 
ber 21, 1977, was printed in the "Decisions" section of the report of 
Court Proceedings and Actions of Vital Interest to the Congress, 
Part 3, December 31, 1977. 

The complete text of the opinion of the Court of Appeals regard- 
ing the ownership of Miss Woods' materials is printed in the "Deci- 
sions" section of the report of Court Proceedings and Actions of 
Vital Interest to the Congress, Part 4, May 15, 1978. 



92 

The complete text of the Court of Appeals decision of December 
21, 1978, in the consolidated cases is printed in the "Decisions" 
section of this report at 257. 

Nixon v. Solomon 

Civil Action No. 77-1395 (D.D.C.) 

Brief. — This action was originally filed by former President Rich- 
ard Nixon against Joel W. Solomon, as Administrator of General 
Services in U.S. District Court for the District of Columbia on 
August 10, 1977. The complaint sought declaratory and injunctive 
relief from certain provisions of the Regulations (41 C.F.R. § 105- 
63) promulgated by defendant pursuant to the Presidential Record- 
ings and Materials Preservation Act (hereinafter "Act"), 44 U.S.C. 
§ 2107 (1976) and from their enforcement by defendant. Nixon 
amended his complaint on August 19, 1977, in response to amend- 
ment of the regulations made on August 12, 1977 to challenge 
specifically sections 105-63.203, 105-63.204 (d), (e), (f), and (g), 105- 
63.302 and 105-73.303 of those regulations. The complaint was 
again amended on January 31, 1978. 

In the second amended complaint, the first and second causes of 
action, out of a total of 19 causes of action, relate to the role of 
Congress in enacting Section 104(b) of the Act and in the promulga- 
tion of the regulations pursuant thereto. Mr. Nixon asserts, in the 
first cause of action, that Section 104(b) and all of the regulations 
promulgated pursuant thereto are unconstitutional, void, and vio- 
late his rights and privileges in that: 

(a) Section 104(b) on its face violates the Separation of 
Powers doctrine embodied in Articles I, II and III of the 
United States Constitution by reserving to Congress the 
power to disapprove regulations promulgated to adminis- 
ter an act, which is an Executive function and not within 
Congress' power under Article I; 

(b) Section 104(b) on its face constitutes an unlawful 
delegation of legislative power to one House of Congress; 

(c) Section 104(b) on its face illegally permits Congress to 
evade the presidential veto requirements of Article I, § 7, 
clauses 1, 2 and 3 of the Constitution by taking actions 
having the effect of laws but without following lawful 
legislative procedures; 

(d) Section 104(b) on its face violates Article I of the 
Constitution and the Separation of Powers doctrine by 
reserving to each House of Congress the power to change 
at any time the rules set by the Act under which proposed 
regulations may be disapproved, thereby permitting either 
House of Congress to accomplish an amendment of the Act 
without the signature of the President or a congressional 
override of a presidential veto; and 

(e) Section 104(b) on its face purports to endow a House 
of Congress with powers outside those specifically enumer- 
ated in Article I of the Constitution or necessary and 
proper to such specifically enumerated powers. [Nixon v. 
Solomon, C.A. No. 77-1395 (D.D.C), Second Amended Com- 
plaint For Declaratory and Injunctive Relief at 5-6.] 



93 

The second cause of action assets that Section 104(b) of the Act is 
unconstitutional as applied in this case because Congress, under 
color of Section 104(b), improperly, unlawfully and unconstitution- 
ally influenced the promulgation of regulations under the Act, in 
derogation of plaintiffs rights and privileges. 

The Justice Department filed its answer on April 14, 1978. In 
regard to the first and second causes of action, the Justice Depart- 
ment "admitted" these paragraphs of the complaint "in that the 
fourth and now effective set of regulations are, in part or in whole, 
the product of the exercise of the Congressional one-House veto 
provided by Section 104(b) of the Act." [Answer at 2.] 

The Reporters Committee for Freedom of the Press, American 
Historical Association, American Political Science Association, 
James MacGregor Burns, Nat Hentoff, Donald G. Herzberg, Wil- 
liam Leuchtenberg, Arthur Link, J. Anthony Lukas, Austin 
Ranney and Clement E. Vose moved to intervene as defendants on 
April 24, 1978. The motion was granted on June 14, 1978. 

Status. — The case is pending before the District Court. 

Citronelle-Mobile Gathering, Inc. v. Gulf Oil Corp. 

No. 5-31 (TECA) 

Brief. — Federal Energy Administration (hereinafter "FEA") price 
control regulations set the maximum price of crude oil at $5.40 per 
barrel. These regulations expired on August 31, 1975. In mid- 
August 1975, Citronelle-Mobile Gathering, Inc. (hereinafter "Cit- 
moco") agreed to sell to Gulf Oil Corp. (hereinafter "Gulf), and 
Gulf agreed to purchase crude oil at $13 per barrel, the price to be 
effective from September 1, 1975, until such time as new valid 
price controls were imposed. 

On September 29, 1975, President Gerald R. Ford signed into law 
the Emergency Petroleum Allocation Act of 1975 (hereinafter "1975 
Act") which extended the Emergency Petroleum Allocation Act of 
1973 (hereinafter "1973 Act") to November 15, 1975. Section 3 of 
the 1975 Act said that "It is the intent of the Congress that the 
regulations promulgated [by the FEA] under the Emergency Petro- 
leum Allocation Act of 1973 shall be effective for the period be- 
tween August 31, 1975, and the date of enactment of this Act." 

Between September 1, 1975 and December 14, 1975, Citmoco 
made six deliveries of crude oil to Gulf. Gulf paid $13 per barrel for 
the first delivery, but only $5.40 per barrel for the remaining 
deliveries. Citmoco filed suit on October 7, 1975, in the United 
States District Court for the Southern District of Alabama for the 
difference in the per barrel price of the oil delivered up to that 
time. On March 11, 1976, they amended their complaint to recover 
the difference for deliveries made from October 7, 1975 to Decem- 
ber 14, 1975. Gulf filed a counterclaim on October 29, 1975, to 
recover the difference it had paid to Citmoco for the September 1, 
1975 delivery for which Gulf had paid $13 per barrel. 

Citmoco asserts that there were no valid regulations regarding 
price controls in effect during the period of these deliveries, the 
1973 Act having expired on August 31, 1975, and with it all of the 
FEA's regulations. They claim that the mere establishment of a 
new statutory expiration date for a lapsed Executive regulation 



94 

was not sufficient in and of itself to revive the lapsed regulation, 
and that it also could not be given retroactive effect. 

They also argue that the legislative veto provisions of the 1973 
Act and the 1975 Act are unconstitutional. Section 4(g)(z) of the 
1973 Act provided that the President, upon finding that there was 
no longer an emergency shortage of a product, could exempt that 
product from price controls for 90 days by submitting an amend- 
ment to the regulations to the Congress, but the amendment could 
not take effect until it had been before the Senate for 5 legislative 
days and the House of Representatives for 5 legislative days, and it 
would not take effect if either House passed a resolution disapprov- 
ing the amendment. Citmoco asserts that these legislative veto 
provisions infringe upon the President's constitutional veto powers, 
contravene the specific constitutional provisions concerning the 
manner in which Congress can exercise its legislative powers, and 
are contrary to the constitutional doctrine of separation of powers. 

The FEA was granted leave to intervene as a party defendant on 
March 10, 1976. 

In an opinion and order filed on August 20, 1976, U.S. District 
Judge Virgil Pittman entered Judgment for Gulf on the complaint 
and on its counterclaim for the difference it paid for the first 
delivery. The court found that Congress could and did extend the 
regulations and made them retroactive to August 31, 1975. 

Regarding the issue of the legislative veto, the court said only: 

The Government agrees with the contention that Section 
5 is a Congressional veto of Presidential authority [which] 
raises a substantial constitutional question but asserts that 
the plaintiff has no standing to raise this question. This 
court agrees. [Citronelle-Mobile Gathering, Inc. v. Gulf Oil 
Corp., 420 F. Supp. 162, 170 (S.D. Ala. 1976).] 

Citmoco appealed the decisions to the United States Court of 
Appeals for the Fifth Circuit on October 4, 1976. In its brief, 
Citmoco again asserted, inter alia, the unconstitutionality of the 
one-House legislative veto. 

The Court of Appeals issued its opinion on August 25, 1978, 
remanding the cause to the District Court with the direction that it 
certify to the Temporary Emergency Court of Appeals (hereinafter 
"TECA") the substantial constitutional questions raised by Gulfs 
counterclaim concerning due process limits upon retroactivity. The 
opinion of the Court of Appeals, written by Circuit Judge Clark, 
stated that it would be improper to reach the merits of the appeal 
because it found that the District Court had erred in concluding 
that this case presented no substantial constitutional questions 
which required certification to TECA. 

The Court of Appeals also noted: 

Citronelle has raised other constitutional issues in the 
case at bar. However, it would be premature to direct 
certification of those issues at this time. Under the provi- 
sions of Section 211(c), 12 U.S.C.A. § 1904 note, TECA, on 
receipt of a certified question, may direct that the District 
Court send it the entire case for disposition, remand the 
certified issue for further factual development, or give 
binding instruction on the certified issue and remand the 



95 

case to the District Court for further disposition. Depend- 
ing upon TECA's determinations, the question whether to 
certify these remaining constitutional issues could become 
moot. [Slip Opinion at 6652.] 

The District Court certified the cause to the Temporary Emer- 
gency Court of Appeals on August 28, 1978. On September 6, 1978 
plaintiff filed a motion in the District Court to vacate the order 
certifying the cause to the Temporary Emergency Court of Appeals 
as having been prematurely entered. The motion vacating the 
order was granted on September 12, 1978. 

On September 13, 1978, plaintiff filed a petition for rehearing 
and suggestion for rehearing en banc in the Court of Appeals. 

Rehearing was denied on October 20, 1978. 

On November 16, 1978, the District Court certified the cause to 
the TECA. 

On November 21, 1978, the Federal Energy Administration 
moved to dismiss the appeal. 

On December 4, 1978, Gulf Oil moved to dismiss the appeal. 

Status. — The case is pending before the Temporary Emergency 
Court of Appeals. 

The opinion of the Court of Appeals is printed in the "Decisions" 
section of Court Proceedings and Actions of Vital Interest to the 
Congress, Part 5, September 15, 1978. 

Goland v. Central Intelligence Agency et aL 

No. 76-1800 (D.C. Cir.) 

Brief. — Plaintiffs, Susan D. Goland and Patricia B. Skidmore, 
filed suit on January 26, 1976, pursuant to the Freedom of Informa- 
tion Act, as amended, 5 U.S.C. § 552 (hereinafter "FOIA"). Named 
as defendants in the suit were the Central Intelligence Agency 
(hereinafter "CIA") and the Information Coordinator of the CIA. 

This action was the result of a request of documents which was 
first made by Sara Holtz. On May 2, 1975, Sara Holtz, who is not a 
party to the suit, filed an FOIA request with the CIA seeking 
access to "all records concerning the legislative history" of the 
National Security Act of 1947, 50 U.S.C. § 403 (1970), the CIA Act of 
1949, 50 U.S.C. §§ 403a-403j (1970), and two bills introduced into 
Congress in 1948 providing for the administration of the Agency. 

The CIA responded to Ms. Holtz' request by advising her that the 
documents she sought were Congressional materials which would 
be available in the Library of Congress or the Government Print- 
ing Office. Ms. Holtz responded with a second letter, stating her 
belief that hearings had been held on the bills she cited for which 
no transcripts were available in the Library of Congress, and re- 
questing access to records of these hearings and to "any House, 
Senate or Conference Reports, besides those available in public 
libraries, that more fully explain the basis for the Committees' 
action on these bills." 

The CIA responded to this second letter by informing Ms. Holtz 
that a search of its records had revealed that it possessed one 
document relating to the legislative history of the CIA's organic 
statutes which was not publicly available, namely, a stenographic 



96 

transcript of hearings held before the House Committee on Expend- 
itures in the Executive Departments on June 27, 1947 (hereinafter 
1 'Hearing Transcript"). The CIA stated, however, that the Hearing 
Transcript had been classified "Secret" by Congress and could be 
declassified only by that body; it suggested that Ms. Holtz request 
declassification and release of the document from the House of 
Representatives. 

On October 20, 1975, plaintiffs, Ms. Goland and Ms. Skidmore 
notified the CIA that they, like Ms. Holtz, were investigating the 
authority, organization and administration of the Agency, and re- 
quested the documents sought by Ms. Holtz' letters. Treating the 
CIA's failure to respond within ten days as a denial of their re- 
quest, plaintiffs in a letter to CIA Freedom of Information Coordi- 
nator Robert S. Young on November 20, 1975 appealed that denial. 
On November 26, 1975 the CIA offered to send plaintiffs copies of 
five previously published hearings and reports, however with re- 
spect to the Hearing Transcript, the CIA reiterated its position 
that the FOIA did not apply to the transcript because it was a 
"legislative document under the control of the House of Repre- 
sentatives" which was "classified 'Secret' ". 

On December 16, 1975, the plaintiffs wrote the CIA asserting 
that the Agency's letter of November 26, failed to make clear 
whether the Transcript and the five published documents account- 
ed for all the materials they had requested and to expand the scope 
of their request to include any "materials which may have been 
the basis for testimony at hearings" or materials used by or sub- 
mitted by the CIA or other Executive Branch sources which are 
included in "[unpublished] reports" on the cited bills. 

The CIA's failure to respond within 20 working days resulted in 
the filing of this action in the U.S. District Court for the District of 
Columbia. 

On March 10, 1976 the CIA notified plaintiffs' counsel that it had 
identified two additional documents. The first, which was released 
to plaintiffs in full, was entitled "Statement of Lt. General Hoyt S. 
Vandenberg, Director of Central Intelligence," delivered before the 
Senate Armed Services Committee on April 29, 1947. The second, 
which was released to plaintiffs with certain portions deleted, was 
entitled "Statement of the Director of Central Intelligence [Hillen- 
koetter] delivered before the House Armed Services Committee on 
April 8, 1948" (hereinafter "Hillenkoetter Statement"). The Agency 
claimed that the deleted material was exempt from disclosure 
under FOIA, by statutory mandate because it contained informa- 
tion regarding intelligence methodology and function. 

On May 26, 1976, the District Court granted the CIA's motion for 
summary judgment. Goland v. CIA No. 76-0166 (D.D.C. May 26, 
1976). The court found that the Hearing Transcript was a Congres- 
sional document released to the CIA for limited purposes as a 
reference document only. The court stated: 

Since this document is a record of a hearing held in Execu- 
tive Session and remains within the control of Congress, 
this Court finds that the document is exempt from disclo- 
sure under the Freedom of Information Act. [Goland v. 



97 

C.I.A., No. 76-166, Findings of Fact at 2 (D.D.C. May 26, 

1976).] 

The court also found that the deleted portions of the Hillenkoet- 
ter Statement were properly withheld under FOIA Exemption 1, 5 
U.S.C. § 552(b)(1) which provides, in pertinent part, that: 

(b) This section does not apply to matters that are — 
(IX A) specifically authorized under criteria established 
by an Executive order to be kept secret in the interest of 
national defense or foreign policy * * * 
The court also held that no further discovery was justified since 
the CIA had "made a full search in good faith. 

On July 23, 1976, plaintiffs filed a notice of appeal. On May 23, 
1978, the appellate court rendered its decision, affirming the judg- 
ment of the District Court. 

The appellate court rejected plaintiffs' argument that, "since the 
CIA is an 'agency', its possession of the Hearing Transcript, with- 
out more renders that document 'an agency record' subject to 
disclosure absent specific exemption." In rejecting the plaintiffs 
argument, the court stated: 

Congress has undoubted authority to keep its records 
secret, authority rooted in the Constitution, 36 long standing 
practice, 37 and current Congressional rules. 38 Yet Congress 
exercises oversight authority over the various federal 
agencies, and thus has an undoubted interest in exchang- 
ing documents with those agencies to facilitate their 
proper functioning in accordance with Congress' originat- 
ing intent. 39 If plaintiffs' argument were accepted, Con- 
gress would be forced either to surrender its constitutional 
prerogative of maintaining secrecy, or to suffer an impair- 
ment of its oversight role. 



36 U.S. Const. Art. I, Sec. 5: "Each House shall keep a Journal of its 
Proceedings, and from time to time publish the same, excepting such 
Parts as may in their Judgment require Secrecy ..." 

37 See Nixon v. Sirica, 487 F.2d 700, 772-73 (D.C. Cir. 1973) (Wildey, J., 
dissenting). 

38 E.g., H.R. Rule XI(2XkX7), reprinted in H.R. Doc. No. 416, 93d Cong., 
2d Sess. 427 (1975); "No evidence or testimony taken in executive session 
may be released or used in public session without the consent of the 
committee." 

39 See Letter from Deputy Att'y Gen. Harold R. Tyler, Jr. to Hon. Bella 
S. Abzug, 19 Feb. 1976, quoted in J.A. 60 (Justice Dept. declined to release 
confidential House report lest "communications and consultations be- 
tween coequal branches" of government be stifled). 

[Slip Opinion at 10-11.] 
The court further stated: 

Whether a Congressionally generated document has 
become an agency record, rather, depends on whether 
under all the facts of the case the document has passed 
from the control of Congress and become property subject 
to the free disposition of the agency with which the docu- 
ment resides. [Slip Opinion at 11-12.] 

The court concluded that given the facts, the Hearing Transcript 
remains under the control of and continues to be the property of 



98 

the House of Representatives. The fact that the Transcript was 
denominated "Secret" plainly evidences a Congressional intent to 
maintain Congressional control over the document's confidential- 
ity. The fact that the CIA retains the Transcript solely for internal 
reference purposes indicates, the court declared, that the document 
is in no meaningful sense the property of the CIA; the Agency is 
not free to dispose of the Transcript as it wills, but holds the 
document as a "trustee" for Congress. 

In agreeing with the District Court that the deleted portions of 
the Hillenkoetter Statement were exempt from disclosure to plain- 
tiffs, the appellate court however, based its decision on Exemption 
3, 5 U.S.C. § 552(b)(3). The court stated: 

As originally enacted, FOIA provided that the Act's disclo- 
sure requirements "do not apply to matters that are * * * 
(3) specifically exempted from disclosure by statute." 51 
Two statutes are relevant to an Exemption 3 claim by the 
CIA. A proviso to 50 U.S.C. § 403(d)(3) states that, "the 
Director of Central Intelligence shall be responsible for 
protecting intelligence sources and methods from unau- 
thorized disclosure." 52 Section 403g of the same title pro- 
vides that, "in order further to implement" this proviso, 
"the Agency shall be exempted from * * * the provisions 
of any * * * law which require the publication or disclo- 
sure of the organization, function, names, official titles, 
salaries, or number of personnel employed by the 
Agency. 53 



51 5 U.S.C. § 552(b)(3) (1970). 

"National Security Act of 1947, ch. 343, tit. I, §102, 61 Stat. 497 
(presently codified at 50 U.S.C. § 403(dX3) (1970)). 

"CIA Act of 1949, ch. 227, 7, 63 Stat. 211 (presently codified at 50 
U.S.C. § 403(g) (1970)). 

[Slip Opinion at 16-17.] 

Having decided that Sections 403(d)(3) and 403g remained un- 
changed by a 1976 Congressional amendment to Exemption 3, as 
statutes intended to qualify under Exemption 3, the court then 
determined that on the basis of affidavits, without the need for 
discovery or in camera inspection, the deleted portions of the Hil- 
lenkoetter Statement were properly withheld. 

In affirming the District Court's award of summary judgment in 
favor of the CIA in its finding that "the CIA ha[d] made a full 
search in good faith and that no further discovery [was] justified," 
the court based its decision on affidavits, executed by Gene F. 
Wilson, the Agency's Information and Privacy Coordinator. The 
court stated: 

In order to prevail on an FOIA motion for summary judg- 
ment, "the defending agency must prove that each docu- 
ment that falls within the class requested either has been 
produced, is unidentifiable, or is wholly exempt from the 
Act's inspection requirements." 75 In determining whether 
an agency has met this burden of proof, the trial judge 
may rely on affidavits. Congress has instructed courts to 
accord ' substantial weight to agency affidavits in national 
security cases, 76 and these affidavits are equally trustwor- 



99 

thy when they aver that identified documents are exempt. 
The agency's affidavit, naturally, must be "relatively de- 
tailed" and nonconclusory 77 and must be submitted in 
good faith. But if these requirements are met, the district 
judge has discretion to forgo discovery and award sum- 
mary judgment on the basis of affidavits. 78 



"National Cable Television Ass'n. Inc. v. FCC, 479 F.2d 183, 186 (D.C. 
Cir. 1973). 

78 S. Rep. No. 93-1200, 93d Cong., 2d Sess. 12 (1974) (Conference Report); 
120 Cong. Rec. 36,870 (1974) (remarks of Sen. Muskie). See EPA v. Mink, 
410 U.S. 73, 93 (1973). 

77 Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert, denied, 415 
U.S. 977 (1974). 

78 See Nolen v. Rumsfeld, 535 F.2d 890, 891-92 (5th Cir. 1976) (granting 
summary judgment upon agency's representations "in candor and in good 
faith" that all responsive documents were made available to plaintiff); 
Association of Natl Advertisers, Inc. v. FTC, 38 Ad.L.2d 643, 644 (D.D.C. 
April 1, 1976) (where record indicates that agency search was "reasonably 
thorough," discovery may be limited by court; to justfy discovery where 
FTC "has already stated under oath that the search was Commission- 
wide and complete, * * * [p]laintiff must demonstrate some substantial 
discrepancy between the defendant's actions and words * * *"); Exxon 
Corp. v. FTC, 384 F. Supp. 755, 759-60 (D.D.C. 1974), remanded, 527 F.2d 
1386 (D.C. Cir. 1976), dismissed, No. 73-1928 (D.D.C. Feb. 28, 1977) (limit- 
ing discovery where affidavits demonstrated adequacy of search). 

[Slip Opinion at 23-24.] 

In dissent Judge Bazelon declared: 

In my view, the record in this case establishes as a matter 
of law that the hearing transcript is an "agency record," 
and the court is empowered to order it withheld only if it 
qualifies for nondisclosure under FOIA exemptions one or 
three. First of all, the CIA claims to have had exclusive 
possession of this document for more than thirty years. 
More importantly, the CIA acknowledges that it employs 
this information in interpreting its organic legislation — 
i.e., in making decisions with respect to policy and oper- 
ations. The Act does not define "agency records." But the 
House and Senate reports reveal that the fundamental 
purpose of the FOIA was to open administrative policy and 
operations to the light of public scrutiny. [Slip Opinion 
(dissent) at 6-7. (Footnotes omitted.)] 

Judge Bazelon further noted that in regards to the Hearing 
Transcript, he found the court's "control /property" test unpersua- 
sive. He stated that: 

"Federal agencies regularly receive documents created by 
nonagencies that obviously become "agency records" in the 
ordinary course. See, e.g., Washington Research Project, 
Inc., v. H.E. W., 504 F.2d 238 (D.C. Cir. 1974) (grant applica- 
tion submitted to National Institute of Mental Health by 
noncommercial research scientist); Irons v. Gottschalk, 369 
F. Supp. 403 (D.D.C. 1974) (patent application). [Slip Opin- 
ion (dissent) at 8.] 

It was his opinion that: 



100 

[T]he court would supplement the element of "control" 
with other concepts having to do with ' 'property". The 
court's ultimate position, as I see it, would be that Con- 
gress has a property interest in, as well as control over, 
the contents of the transcript, the paper on which the 
contents are typed, and any copy of the transcript. But so 
sweeping a notion is plainly at odds with the majority's 
concession that the Hillenkoetter statement is an agency 
record. [Slip Opinion (dissent) at 10.] 

The dissent further states: 

[A]ssuming the ' 'control/ property" standard is the correct 
one, factual ambiguities in the record would preclude sum- 
mary judgment. If Congress does, generally speaking, exert 
control over, and maintain property interests in, docu- 
ments possessed by federal agencies, the majority's test 
generates a need to ascertain the methods by which such 
control is exercised and relinguished, and the means by 
which such property interests are created and extin- 
guished. In this case discovery is necessary specifically to 
determine whether Congress or the Committee that con- 
ducted the hearings ever instructed the CIA to preserve 
the secrecy of the transcript, and, if so, for how long. [Slip 
Opinion (dissent) at 12.] 

The dissent would also deny summary judgment on the Exemp- 
tion 3 status of the Hillenkoetter Statement because the CIA did 
not furnish a Vaughn v. Rosen index of that document, which 
would require that the agency submit an itemized index that would 
satisfy the "detailed justification," "specificity," and "separation" 
requirements the Vaughn index was meant to ensure. (Vaughn v. 
Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert, denied, 415 U.S. 977 
(1974).) Judge Bazelon was of the opinion that the affidavit filed by 
the CIA, "plainly fails to supply the information necessary to facili- 
tate the adversary process and de novo review." [Slip Opinion 
(dissent) at 19.] 

In regards to the thoroughness of the CIA's search for responsive 
documents, the dissent, while not seriously questioning the CIA's 
good faith, was of the opinion that discovery was needed in any 
event to ascertain whether the CIA personnel conducting the 
search used an "rnderinclusive" definition of "legislative history". 
The dissent was also of the opinion that such discovery would have 
revealed whether the persons conducting the search did in fact 
withhold otherwise responsive documents on the basis of the CIA's 
definition of "agency records". 

On June 6, 1978, Ms. Goland and Ms. Skidmore filed a petition 
for rehearing and suggestion for rehearing en banc. 

On June 16, 1978, plaintiffs-appellants filed a motion to vacate 
the decision of the Court of Appeals. 

Status. — The case is pending before the Court of Appeals. 

The complete text of the Findings of Fact of the District Court of 
May 26, 1976, is printed in the ' Decisions" section of Court Pro- 
ceedings and Actions of Vital Interest to the Congress, Part 5, 
September 15, 1978. 



101 

The complete text of the opinion of the Court of Appeals is 
printed in the "Decisions" section of Court Proceedings and Actions 
of Vital Interest to the Congress, Part 5, September 15, 1978. 

Daughtrey v. Carter 

No. 77-1702 (D.C. Cir.) 

Brief. — This action was filed in the United States District Court 
for the District of Columbia on February 12, 1977, by twelve retired 
military officers and enlisted men, one active duty military officer, 
one civilian former prisoner of war, a minor child of a prisoner of 
war who had died in captivity, one civilian, the wives of two of the 
military plaintiffs, and two members of the United States House of 
Representatives, George Hansen of Idaho and Lawrence McDonald 
of Georgia. The complaint, which named President Carter, and 
Griffin Bell, as Attorney General of the United States, defendants, 
sought declaratory and injunctive relief restraining the operation 
of the Presidential Proclamation entitled "Granting Pardon for 
Violations of the Selective Service Act, August 4, 1964 to March 28, 
1973" (Pres. Proc. No. 4,483, 42 Fed. Reg. 4391 [1977]) (hereinafter 
"Proclamation") and the Executive Order implementing that Proc- 
lamation (Exec. Order No. 11,967, 42 Fed. Reg. 4393 [1977]), both of 
which President Carter signed on January 21, 1977. 

Plaintiffs, in their first cause of action, sought a judgment declar- 
ing the Proclamation and Executive Order to be void and of no 
force and effect on the grounds that they are vague, ambiguous and 
impossible of application to specific individuals; that their imple- 
mentation requires a constitutionally impermissible invasion of the 
legislative prerogatives of the Congress by abrogating of statutes 
and by creating special classes of persons and prospectively 
exempting them from the application of duly enacted statutes; that 
they create a dilution of the weight of the franchise (vote) of each 
of the plaintiffs; and that they invidiously discriminate among 
persons and classes of persons pardoned, in violation of the 14th 
Amendment. Alternatively, the first cause of action sought an 
order from the court directing the Attorney General to conduct 
hearings upon each person claiming to be a member of the class 
pardoned to determine if the pardon applies to that person and 
includes the restoration of full political rights, citizenship or any 
other benefits; and directing that the determination resulting from 
such hearing shall be reported to the President and shall be conclu- 
sive upon the President's concurrence. 

In the second cause of action, plaintiffs sought a judgment de- 
claring that Congress alone has the power to determine the 
manner of acquiring, losing or reacquiring citizenship; that, except 
as to recipients of Presidential Pardons, the penal provisions of the 
United States Code remain in full effect; and that the President 
has absolute pardon power over every offense against the United 
States excepting only impeachment. 

The third and final cause of action asked for an injunction pro- 
hibiting the Attorney General from giving effect to that part of the 
Executive Order which suspends the effect of the Military Selective 
Service Act and the Aliens and Nationality Act. 

The United States Attorney moved, on February 23, 1977, for 
leave to appear as an amicus curiae for the purpose of suggesting 



102 

to the court that as to the President, service of process should be 
quashed and he should be dismissed as a party defendant. Filed 
with the motion was the suggestion itself and a supporting memo- 
randum of points and authorities. The motion to appear as amicus 
curiae was granted on March 21, 1977. In the memorandum of 
points and authorities, the United States Attorney argued that the 
President should be dismissed as a party defendant since the Presi- 
dent is to be made a party to civil actions only where absolutely 
necessary and, in this case, plaintiffs may be afforded the complete 
relief they are seeking against the remaining party defendant, the 
Attorney General. 

Plaintiffs filed a memorandum of points and authorities in oppo- 
sition to the motion to quash on April 5, 1977, in which they 
argued, inter alia, that complete relief could not be obtained 
against the Attorney General alone. 

The Attorney General filed a motion to dismiss the complaint on 
the grounds that the plaintiffs lacked standing and the court 
lacked subject matter jurisdiction. 

District Court Judge Corcoran issued an order on May 11, 1977, 
dismissing the case on the grounds that plaintiffs had shown no 
injury to themselves resulting from the issuance of the Pardon or 
Executive Order and therefore had no standing to sue. 

Plaintiffs filed a notice of appeal on June 22, 1977. 

The judgment of the District Court was affirmed by the Court of 
Appeals in an opinion filed for the court July 25, 1978, by Circuit 
Judge Tamm. Judge Tamm first reviewed the allegations of the 
appellants, describing them in this manner: 

Although appellants challenge the Presidential Proclama- 
tion and Executive Order on multiple grounds, their prin- 
cipal contention is that the President exceeded the limits 
of his constitutional pardon power, 8 and usurped the power 
of Congress, 9 by directing the Attorney General to violate 
8 U.S.C. § 1182 (1976), which states, in pertinent part: 



8 U.S. Const, art. II, § 2, cl. 1. 

9 See generally id. art. I. 

(a) * * * the following classes of aliens * * * shall 
be excluded from admission into the United 
States: 

(22) Aliens who are ineligible to citizen- 
ship, except aliens seeking to enter as 
nonimmigrants, or persons who have de- 
parted from or who have remained out- 
side the United States to avoid or evade 
training or service in the armed forces in 
time of war or a period declared by the 
President to be a time of war or a period 
declared by the President to be a national 
emergency, except aliens who were at the 
time of such departure nonimmigrant 
aliens and who seek to reenter the United 
States as nonimmigrants. 



103 

Appellants contend that the unlawful entry into the 
United States of persons who remained outside or left this 
country to avoid military service necessarily results in a 
dilution of their right to vote. 10 In the District Court, ap- 
pellants averred that 198 persons had entered the United 
States in violation of section 1182(a) (22), " but at oral 
argument, counsel for appellants suggested that the 
number of such persons entering this country may be in 
the thousands. 



">R.E. [Record Entry] 1 fl XVII. 
"R.E. 8, at 2-3. 

Appellants contended in the District Court that persons 
who left or remained outside of the United States to avoid 
military service lost their citizenship by operation of law, 
and that the President unlawfully restored political rights 
to such persons. 12 However, appellees argued that appel- 
lants apparently relied upon a provision, 8 U.S.C. 
§ 1481(a)(10) (1970), 13 that has been repealed. 14 See National 
Emergencies Act, Pub. L. No. 94-412, § 501(a) (1) and (2), 90 
Stat. 1255, 1258 (1976). 15 



12 R.E. in XI. 

13 8 U.S.C. §1481(aX10) (1970) provided, in pertinent part: "[A] person 
who is a national of the United States • * * shall lose his nationality by 
* * * departing from or remaining outside of the jurisdiction of the 
United States in time of war or during a period declared by the President 
to be a period of national emergency for the purpose of evading or 
avoiding training and service in the military, air, or naval forces of the 
United States." 

"R.E. 7, at2n.3. 

15 The repealed section had provided explicitly for loss of nationality by 
any national of the United States who departed from or remained outside 
of this country during war or presidentially declared national emergency 
for the purpose of avoiding military service. Congress' repeal followed the 
Supreme Court's decision that the section was unconstitutional. Kennedy 
v. Mendoza-Martinez, 372 U.S. 144 (1963). See S. REP. No. 94-1168, 94th 
Cong., 2d. Sess. 6 (1976). In Kennedy, the Supreme Court held that the 
automatic deprivation of citizenship as a penalty for leaving or staying 
outside the country to avoid military service was unconstitutional be- 
cause it did not afford the procedural safeguards guaranteed by the fifth 
and sixth amendments. 372 U.S. at 165-66. 

Appellants apparently do not now rely on their original 
assertion that persons who left or remained outside the 
United States to avoid military service became aliens by 
operation of law. Instead, they contend that the Presiden- 
tial Proclamation and Executive Order restore full politi- 
cal rights, including voting rights, to such persons, and 
that such persons are ineligible for restoration of such 
rights under 8 U.S.C. § 1182(a)(22). 16 



18 See Reply for Plaintiffs Appellants at 1, 5. 

Appellants additionally allege that the Executive Order 
accomplished either an unlawful delegation of the pardon 
power to the Attorney General, or a suspension of provi- 
sions of the Military Selective Service Act, codified in scat- 
tered sections of titles 10, 37, and 50 app. of the United 



104 

States Code (1976, 1970 & Supp. V 1975), in cases involving 
force and violence that the Attorney General deems not 
serious. 17 They contend that the Attorney General is vio- 
lating 8 U.S.C. § 1182(d)(5) (1976), by failing to impose con- 
ditions of parole on persons entering the United States 
under provisions of the Presidential Proclamation and Ex- 
ecutive Order. 18 Appellants also contend that the Procla- 
mation and Executive Order are void because they invi- 
diously discriminate among classes of potential recipients 
of the pardon. 19 



17 R.E. 1 n XII, XIV. 

»/d H XVI. 
19 1j XV. 

Appellants sought a declaration that the Presidential 
Proclamation and Executive Order are void on the forego- 
ing grounds, as well as a broad declaration that "[t]he 
Congress alone has the power to declare the manner of 
acquiring, losing or reacquiring citizenship; * * * [e]xcept 
as to recipients of [the] Presidential Pardon, the penal 
provisions of the United States Code, wherever codified, 
are and remain in full force and effects; and * * * [t]he 
President has absolute pardon power over every offense 
against the United States excepting only impeachment." 20 



20 Id. If XIX. 



[Slip Opinion 6-9.] 

Judge Tamm next declared that in reviewing the dismissal of the 
action for lack of standing, the panel accepted the material allega- 
tions of the complaint as being true. 

Judge Tamm noted three possible bases for standing that had 
been alleged by appellants: 

(1) as eligible voters, they are injured by the dilution of 
their votes necessarily resulting from the alleged unlawful 
entry of persons into the United States and restoration of 
full political rights to such persons; (2) as Congressmen, 
two appellants are injured by the President's usurpation of 
their lawmaking power; (3) as citizens, appellants are in- 
jured by the Attorney General's failure to enforce the law. 
[Slip Opinion at 10.] 

The court turned first to appellants' allegation that their voting 
rights are diluted by the unlawful entry into the country of persons 
excluded from entry and the resulting exercise of full political 
rights by an unknown number of such persons. The court noted 
that the United States Supreme Court, in Baker v. Carr, 369 U.S. 
186 (1962), held that qualified voters of various Tennessee counties 
had standing to constitutionally challenge a statewide apportion- 
ment scheme. The Court of Appeals held here, however, that, in its 
opinion, Baker v. Carr did not make every alleged dilution of voting 
rights a sufficient injury to confer standing, and that upon exami- 
nation of the allegations in this case, appellants had not stated an 
injury in fact, the most important element of standing in Federal 



105 

court. The appellants, the opinion noted, live in various localities 
and did not contend that their votes are diluted in any particular 
election or geographical area, nor did they contend that they are 
an identifiable group of voters whose votes would be disfavored vis- 
a-vis some other group. At most, the court declared, the appellants' 
complaint could be read as claiming that their votes in elections 
for any office, whether National, State, or local, are being diluted 
as a result of the reentry into the United States and entitlement to 
vote of a relatively small and unknown number of persons. There- 
fore, the court concluded, the appellants had failed to satisfy the 
requirement enunciated in Schlesinger v. Reservists Committee to 
Stop the War, 418 U.S. 208 (1974), of the presentation of a "discrete 
factual context" within which "concrete injury occurred." The 
court also termed the alleged injury "too speculative" to support 
standing. The opinion also expressed the view that appellants were 
requesting broad constitutional adjudication which was unneces- 
sary in this case and hence not to be entertained and that appel- 
lants lacked such a personal stake in the outcome as to confer 
standing. 

The opinion of the Court of Appeals turned next to the issue of 
the standing of the Congressional appellants. Congressmen Hansen 
and McDonald based their claim to standing on their allegation of 
the usurpation of Congress' legislative power by the de facto repeal 
of acts of Congress as a result of the failure of the executive branch 
to enforce the law. On appeal, this claim was limited to the failure 
of the Attorney General to enforce certain provisions of the Immi- 
gration and Nationality Act. (8 U.S.C. §§ 1101-1503 and scattered 
sections of titles 18, 22, 31, 49 and 50 app. of the U.S. Code (1976, 
1970 & Supp. V 1975).) 

The court noted that, while injuries suffered by legislators may 
differ from those suffered by non-legislator litigants, for purposes 
of standing, the method of analyzing such alleged injuries for the 
purpose of determining standing is the same. The question to be 
answered is whether those alleging standing have asserted a judici- 
ally cognizable injury in fact. The Court of Appeals, in discussing 
this issue, cited its own earlier opinion in Harrington v. Bush, 553 
F.2d 190 (D.C. Cir. 1977). In that case the court held that post- 
enactment impropriety in the administration of laws does not 
usurp the lawmaking power of an individual Congressman, nor 
does allegation of such illegality state an injury in fact to the 
individual legislator's lawmaking function. Since in this case, 
unlike the situation in Harrington, these Congressional appellants 
did not claim to have actually voted for the legislation in question, 
the opinion held that they alledged, at most, either (1) that through 
nonenforcement, the President has usurped their power to enact 
repealing legislation, or (2) that as Congressmen, they had a unique 
interest in ensuring that the laws are enforced. The Court of Ap- 
peals rejected both of these contentions as being without merit. 

In conclusion the opinion stated: 

The failure or refusal of the executive branch to execute 
accomplished legislation does not affect the legal status of 
such legislation; nor does it invade, usurp, or infringe upon 
a Congressman's power to make a law. See Harrington v. 



106 

Bush, 553 F.2d at 212-13. Once a bill becomes law, a 
Congressman's interest in its enforcement is shared by, 
and indistinguishable from, that of any other member of 
the public. Harrington v. Schlesinger, 528 F.2d 455, 459 
(4th Cir. 1975); accord, Harrington v. Bush, 553 F.2d at 213. 
Thus, in this case, the injury suffered by the congressional 
appellants is in no way unique to their status as legisla- 
tors. [Slip Opinion at 14.] 

As to the interest of all the appellants, as citizens, in the proper 
administration of the law, specifically the enforcement of the Im- 
migration and Nationality Act by the Attorney General, the Court 
of Appeals held an injury to this interest to be an abstract, general- 
ized interest insufficent to confer standing. 

Status. — No further action has been taken. The time for further 
appeal has expired. 

The July 25, 1978 decision of the Court of Appeals is printed in 
the "Decisions" section of Court Proceedings and Actions of Vital 
Interest to the Congress, Part 5, September 15, 1978. 

Schwartz v. United States Department of Justice (Newly Reported 
Case) 

No. 78-1334 (D.C. Cir.) 

Brief. — This suit was filed on November 4, 1976, under the Free- 
dom of Information Act, 5 U.S.C. § 3552 (hereinafter "FOIA"), by 
Robert Bennett Schwartz, to compel the release of materials relat- 
ing to the investigation of the conduct of Peter R. Schlam, an 
Assistant United States Attorney for the Eastern District of New 
York, during the unsuccessful extortion and conspiracy prosecution 
of then-Representative Angelo Roncallo. Named as defendants in 
the complaint were the United States Department of Justice; 
Edward H. Levi, at that time Attorney General of the United 
States; and Peter A. Rodino, Jr., Chairman of the Judiciary Com- 
mittee of the U.S. House of Representatives. Mr. Levi and Con- 
gressman Rodino were sued in their official capacities. 

Mr. Schwartz alleged in the complaint that pursuant to the 
FOIA he was entitled to inspect and copy the documents in the 
possession of the Justice Department and the Judiciary Committee, 
and that he had exhausted all available administrative remedies in 
an attempt to secure such access. The complaint sought declaratory 
and injunctive relief providing for an order directing the defend- 
ants to produce the requested documents immediately, and expedit- 
ing the complaint as provided in the FOIA. 

Along with the complaint, Mr. Schwartz filed an application for 
leave to proceed in forma pauperis. On November 3, 1976, District 
Judge George L. Hart, Jr., granted the application and also dis- 
missed the action under 28 U.S.C. § 1915(d), which provides for the 
dismissal of an action in forma pauperis if the allegation of poverty 
is untrue, or if the court is satisfied that the action is frivolous or 
malicious. 

On November 17, 1976, Mr. Schwartz filed a notice of appeal 
from the order dismissing the action. Leave to appeal without 
prepayment of costs was denied as frivolous and not taken in good 
faith by District Judge Hart on November 17, 1976. 



107 

The United States Court of Appeals for the District of Columbia 
Circuit granted the motion of Mr. Schwartz to proceed on appeal in 
forma pauperis on January 19, 1977. 

On March 4, 1977, a per curiam order was issued, sua sponte, 
vacating the order of the District Court and remanding the case to 
the District Court with instructions to serve the defendants with 
summonses in accordance with Rule 4(a) of the Federal Rules of 
Civil Procedure. 

On July 11, 1977, Defendants, Department of Justice and Griffin 
B. Bell, Attorney General, who was automatically substituted in 
place of Mr. Levi, filed an answer to the complaint. The answer 
claimed, inter alia, that: the complaint failed to state a claim upon 
which relief could be granted; the court lacked subject matter 
jurisdiction; and Griffin B. Bell was not a proper party to the 
action. 

On July 11, 1977, Representative Rodino filed a motion to dismiss 
and a supporting memorandum of points and authorities, in which 
he asserted that as Chairman of the House Judiciary Committee, 
he was not a proper party to the action, that the court lacked 
subject matter jurisdiction and that the complaint failed to state a 
claim upon which relief could be granted. 

Chairman Rodino argued in particular that neither he nor the 
House Judiciary Committee were within the perview of the FOIA. 
He noted that the act applied to "agencies" of the executive branch 
of the Federal Government and that the FOIA specifically excluded 
the Congress from its disclosure requirements. 

Mr. Schwartz filed an affidavit in opposition to Congressman 
Rodino's motion to dismiss. In the affidavit, he requested that 
Representative Rodino be directed to appear and answer the com- 
plaint. The affidavit further stated that Congressman Rodino was 
sued under an asserted general common law right of plaintiff to 
inspect public records. 

On August 30, 1977, District Judge Pratt issued a memorandum 
opinion denying the motion to dismiss. The memorandum opinion 
held that the historic common law right to inspect and copy public 
records has been recognized in the District of Columbia Circuit, 
that the general rule is that all three branches of Government are 
subject to the common law, and that Congressman Rodino had set 
forth no persuasive reason why Congress should be exempt from 
the common law rule. Judge Pratt stated that, absent a showing 
that the matters sought by plaintiff are not "public records" within 
the meaning of the common law rule or that Mr. Schwartz does not 
possess any "interest" required for application of the rule, the 
motion to dismiss could not be granted. He also noted that Con- 
gress could exempt itself from the common law rule if it so desired, 
but had not done so. 

On September 30, 1977, Representative Rodino filed a motion to 
dismiss or, in the alternative, for summary judgment. The grounds 
put forth for the motion were that the court lacked subject matter 
jurisdiction and that there was no dispute as to any issue of mate- 
rial fact. In an affidavit attached to the motion, Congressman 
Rodino stated that no investigation or inquiry of any kind relating 
to the matters alluded to in the complaint had ever been undertak- 
en by the committee or any staff person employed by the commit- 



108 

tee. An affidavit of Edmund L. Henshaw, Clerk of the United 
States House of Representatives was also attached to the motion. 
Mr. Henshaw stated that a search failed to turn up any documents 
or papers relating to any investigaton of Peter Schlam by the 
committee. 

A supplement to the motion to dismiss or, in the alternative, for 
summary judgment and a second affidavit of Congressman Rodino 
were filed on December 7, 1977. Attached to the affidavit were a 
number of documents related to statements made by former Repre- 
sentative Roncallo on the floor of the House of Representatives and 
in a letter to Representative Rodino. The supplement to the motion 
reiterated that there were no House records within the scope of 
Mr. Schwartz' request. 

A memorandum order was issued by District Judge Pratt on 
December 12, 1977, granting the motion of Congressman Rodino for 
summary judgment, denying the motion of the Department of Jus- 
tice for a protective order and directing the Department of Justice 
to answer plaintiffs first set of interrogatories on or before Janu- 
ary 6, 1978. The memorandum order noted that Congressman 
Rodino had indicated by sworn affidavit that he had directed a 
thorough records search and filed and delivered copies of all mate- 
rial compiled by his committee. Judge Pratt stated that a review- 
ing court must grant summary judgment in defendant's behalf 
when the defendant, in candor and good faith, has indicated that 
all available records have been turned over to the plaintiff. In 
denying the motion of the Department of Justice for a protective 
order, the memorandum order noted that plaintiff, proceeding pro 
se, had filed the action in November of 1976 and had been delayed 
over 1 year in his efforts to secure the information at issue. The 
court also noted that the interrogatories did not strike the court as 
unduly burdensome and they might assist plaintiff in his attempt 
to locate additional relevant documents. 

On January 6, 1978, the Department of Justice filed a response 
to Mr. Schwartz' interrogatories. The Department released some of 
the documents requested by Mr. Schwartz and refused to release 
other documents, asserting that they were exempt from disclosure 
under the Freedom of Information Act. Also filed by the Justice 
Department on January 6, 1978, was a motion for summary judg- 
ment on the grounds that there existed no genuine issue as to any 
material fact. In a ' 'statement of material facts pursuant to local 
rule 19(h) as to which there is no genuine issue" and a memoran- 
dum of points and authorities in support of its motion, the Depart- 
ment of Justice argued that the withholding of those documents 
denied to Mr. Schwartz was proper under FOIA exemptions 5, 6, 
7(c) and 7(d) 5 U.S.C. § 552(b). 

On February 9, 1978, District Judge Pratt issued a memorandum 
order granting the Department's motion to dismiss. The liability of 
the Attorney General in his official capacity was treated as incor- 
porated into that of the Department of Justice. The memorandum 
order stated that the documents were variously protected by FOIA 
exemption 7(c), which exempts from mandatory disclosure investi- 
gatory records compiled for law enforcement purposes to the extent 
that the production of such records would constitute an unwarrant- 
ed invasion of privacy; by FOIA exemption 7(d), which exempts 



109 

from mandatory disclosure investigatory records compiled for law 
enforcement purposes to the extent the production of such records 
would disclose the identity of a confidential source; and by FOIA 
exemption 6, which protects from disclosure personnel and medical 
files the disclosure of which would constitute a clearly unwarrant- 
ed invasion of personal privacy. Since the District Court held all of 
the documents in question to be protected by FOIA exemption 6, 
7(c) or 7(d), the applicability of exemption 5, which protects inter- 
agency or intraagency communications which would not be availa- 
ble by law to a party other than an agency in litigation with the 
agency, was not reached in the opinion. 

On March 3, 1978, Mr. Schwartz filed a notice of appeal from the 
memorandum order of February 9, 1978. 

Status. — The appeal is pending before the United States Court of 
Appeals for the District of Columbia Circuit. 

The District Court's memorandum opinion of August 30, 1977 is 
printed in the "Decisions" section of this report at 273. 

The District Court's memorandum order of December 12, 1977 is 
printed in the "Decisions" section of this report at 275. 

The District Court's memorandum order to February 9, 1978 is 
printed in the "Decisions" section of this report at 277. 

Goldwater v. Carter (New Case) 

Civil Action No. 78-2412 (D.D.C.) 

Brief. — Plaintiffs, Members of the Senate and House of Repre- 
sentatives, filed suit on December 22, 1978, in the United States 
District Court for the District of Columbia, against President 
Carter and Secretary of State Cyrus Vance. Plaintiffs include Sena- 
tor Barry Goldwater, Senator Strom Thurmond, Senator Carl 
Curtis, Senator Jake Garn, Senator Jesse A. Helms, Senator-elect 
Gordon Humphrey, Congressman Robert Bauman, Congressman 
Steve Symms, Congressman Larry McDonald, Congressman Robert 
Daniel, Jr., Congressman Bob Stump, Congressman Eldon Rudd, 
Congressman John Ashbrook and Congressman George Hansen. 

The plaintiffs seek to have the court declare unconstitutional 
and illegal, and to enjoin, set aside, annul, suspend, or otherwise 
declare invalid and of no effect, the purported notice by President 
Carter to the Republic of China of the termination of the 1954 
Mutual Defense Treaty (hereinafter "Defense Treaty"), TIAS 3178, 
6 UST 433 (1955), between the United States and the Republic of 
China. Plaintiffs further seek to have the court declare that the 
termination of the 1954 Treaty cannot be legally accomplished, nor 
can notice be given of the intended termination of such treaty, 
without the advise and consent of the United States Senate, or the 
approval of both Houses of Congress. 

The Congressional plaintiffs first assert that the Defense Treaty 
itself stipulates the only method for its abrogation. Article X of the 
Defense Treaty states in its entirety: 

This Treaty shall remain in force indefinitely. Either 
Party may terminate it one year after notice has been 
given to the other Party. 

They then assert that Article 2 of the Vienna convention on the 
Law of Treaties defines the term "party" as "a State which has 



110 

consented to be bound by the treaty and for which the treaty is in 
force." The plaintiffs conclude that under the United States Consti- 
tution and as historically interpreted by the United States, the 
term "party", as used in Article X of the Defense Treaty, means 
the President acting together with the Senate or both Houses of 
Congress. 

Plaintiffs further state that on July 25, 1978, the Senate passed 
by a vote of 94 to 0, the "Dole-Stone Amendment" to the Interna- 
tional Security Assistance Act of 1978, which stated in pertinent 
part: 

It is the sense of the Senate that there should be prior 
consultation between the Senate and the executive branch 
on any proposed policy changes affecting the continuation 
in force of the Mutual Defense Treaty of 1954. 

Plaintiffs also state that on September 7, 1978, at the urging of 
conferees appointed by the House of Representatives, the commit- 
tee on conference on the International Security Assistance Act of 
1978, adopted the Senate provision with an amendment to change 
all references to the "Senate" to "Congress", with the exception of 
the reference to the "Senate" which remain in paragraph (a)(4) 
concerning advice and consent to treaties. The "Dole-Stone Amend- 
ment" was thus amended to read in pertinent part: 

It is the sense of the Congress that there should be prior 
consultation between the Congress and the executive 
branch on any proposed policy changes affecting the con- 
tinuation in force of the Mutual Defense Treaty of 1954. 
[Complaint at 8.] 

Plaintiffs further state that on September 26, 1978, the defend- 
ant, President Carter signed into law the International Security 
Assistance Act of 1978, including the "Dole-Stone Amendment" as 
approved by the committee on conference, and that on October 10, 
1978, 5 days before the adjournment of the 95th Congress, plaintiff, 
Senator Goldwater introduced in the Senate, Senate Concurrent 
Resolution 109, which states in pertinent part: 

That, in accordance with the separation of powers under 
the Constitution, the President should not unilaterally 
take any action which has the effect of abrogating or 
otherwise affecting the validity of any of the security trea- 
ties, comprising the post- World War II complex of treaties, 
including mutual defense treaties, without the advice and 
consent of the Senate, which was involved in their initial 
ratification, or the approval of both Houses of Congress. 
[Complaint at 9.] 

Plaintiffs further declare that the Congress has never directed 
the President to alter or terminate the Defense Treaty, and that on 
December 15, 1978, while the Congress was not in session, defend- 
ant, President Carter publicly announced his unilateral decision 
that the United States would recognize the Peoples Republic of 
China as the sole legal government of China as of January 1, 1979; 
and also publicly announced his unilateral decision to terminate 
the Defense Treaty with the Republic of China, or to give notice of 



Ill 

its termination, without having made any prior consultation with 
the Senate or the House of Representatives, without obtaining the 
Senate's advice and consent, and without the express or implied 
approval of either House of Congress. 

Plaintiffs claim that the unilateral action by the President has 
deprived, and will continue to deprive them of their substantial 
constitutional and statutory rights to be consulted, and to exercise 
their right to vote on the matter of the continued application and 
operation of the Defense Treaty which the Senate approved in 
1955, and that they have suffered and will continue to suffer a 
direct injury in fact to their right to vote and exercise their legisla- 
tive duties. 

Plaintiffs in their complaint pray not only that the President be 
enjoined from taking any further action or making any statements 
which will have the effect of terminating, or creating any expecta- 
tions that the Defense Treaty has been or will be terminated; but 
also that the court declare that any decision by the United States 
to terminate the Defense Treaty cannot be made by the President 
alone since he is not the party to that treaty as specified under 
Article X of that treaty; and that any decision of the United States 
to terminate the Defense Treaty must be made by and with the full 
consultation of the entire Congress, and with the advice and con- 
sent of the Senate, or with the approval of both Houses of Congess. 

Status. — The case is currently pending before the District Court. 



V. Officers, Employees, and Agents of the Congress 

Socialist Workers 1974 National Campaign Committee v. Henshaw 
(formerly Jennings). 

Civil Action No. 74-1338 (D.D.C.) 

Brief— On September 10, 1974, the Socialist Workers 1974 Na- 
tional Campaign Committee, other State and local Socialist Work- 
ers Party Organizations and individual members of the Socialist 
Workers Party filed suit in the U.S. District Court for the District 
of Columbia, asking the court to declare unconstitutional portions 
of the Federal Elections Campaign Act of 1971 (hereinafter 
"FECA"). 

Named as defendants in the case were the Clerk of the House, 
the Secretary of the Senate and the Comptroller General of the 
United States, each of whom is designated as a "supervisory offi- 
cer" with whom statements and reports required under the FECA 
are to be filed. 

The plaintiffs alleged, inter alia, that the provisions of the FECA 
requiring the disclosure of the identities of party members, contrib- 
utors, and others who support "lawful, though controversial politi- 
cal activities," deprive them of their freedom of association rights 
under the First Amendment. Plaintiffs also assert that the report- 
ing and disclosure requirements "deprive the plaintiffs and their 
supporters of the right to associational privacy and to political 
anonymity under the First, Fourth, and Ninth Amendments to the 
Constitution.* * *" 

On October 2, 1974, Common Cause moved to intervene as a 
defendant. On October 10, 1974, the motion to intervene was grant- 
ed and plaintiffs' motion for a three-judge Federal District Court to 
rule on the constitutionality of the law was denied. The denial was 
appealed, but on December 12, 1975, while the appeal was before 
the U.S. Court of Appeals for the District of Columbia Circuit, the 
District Court granted plaintiffs' motion for the three-judge court, 
so the appeal was dismissed. 

Plaintiffs sent interrogatories to and requested the production of 
documents from: W. Pat Jennings and his successor Edmund L. 
Henshaw as Clerks of the House of Representatives; Francis R. 
Valeo as Secretary of the Senate; and Elmer B. Staats as Comptrol- 
ler General of the United States. The House passed H. Res. 863 on 
November 13, 1975, authorizing the Clerk to answer the interroga- 
tories and to provide copies of notifications of noncompliance or 
apparent violations sent by the Clerk to campaign organizations 
affiliated with the Socialist Workers Party from January 1, 1975, to 
the date of the resolution, if the court determined that such docu- 
ments were material and relevant. The court so determined on 
November 19, 1975. 

A second set of interrogatories and requests for the production of 
documents relating to the Socialist Workers Party was received by 

(113) 



114 

each of the defendants on March 8, 1976. The House passed H. Res. 
1122 on March 31, 1976, which had provisions similar to those of H. 
Res. 863, allowing the Clerk to provide the court with copies of all 
"nonpublic" records or documents maintained by his office relating 
to plaintiffs or to any previous Socialist Workers Party committee, 
candidate or official which were requested in the subpoena duces 
tecum and were found by the court to be material and relevant. 

On July 23, 1976, plaintiffs filed a first supplemental and amend- 
ed complaint for declaratory relief, adding several State Socialist 
Workers Parties as plaintiffs and adding the Federal Election Com- 
mission (hereinafter "FEC") and Attorney General Edward Levi as 
defendants. The FEC was added because it is charged by the 1976 
amendments (hereinafter "Amendments") to the FECA with moni- 
toring and enforcing the recordkeeping and disclosure provisions of 
the FECA and the Amendments, and Attorney General Levi was 
added because he is charged with enforcing the FECA's criminal 
sanctions. The amended complaint states that under the Amend- 
ments the plaintiffs must maintain records of all contributors of 
$100 or more and identify them to the FEC, and that plaintiffs 
have not identified them on unnamed constitutional grounds. It 
states that recent information concerning Government harassment 
and surveillance of persons associated with the Socialist Workers 
Party shows further proof that disclosure of these contributors 
would deter and intimidate persons from associating with, contrib- 
uting to, and supporting the plaintiffs and their candidates. It asks 
the court to declare 2 U.S.C. §§ 432(b), (c) and (d), and 438(a)(8) and 
434(b)(l)-(8) unconstitutional on their face as applied to plaintiffs 
and to contributions and expenditures on behalf of their then- 
Presidential candidate Peter Camejo, and to preliminarily and per- 
manently enjoin their enforcement as to plaintiffs and as to candi- 
date Camejo. 

On August 31, 1976, the Clerk of the House, the Secretary of the 
Senate, and the Comptroller General moved for dismissal. These 
defendants asserted that as a result of the FECA Amendments of 
1974, the duties they originally had under the FECA had been 
transferred to the FEC which under the 1974 and 1976 Amend- 
ments has the responsibility to enforce and administer the disclo- 
sure provisions challenged by the plaintiffs. 

On September 29, 1976, the FEC filed its motion to dismiss. In 
support of its motion the FEC noted that it, not the courts, has 
exclusive primary jurisdiction over enforcement of the FECA. Addi- 
tionally, the FEC asserted that the issues raised by the plaintiffs' 
complaint are all within its exclusive primary jurisdiction, and 
that the court "should remit the plaintiffs to the processes estab- 
lished by law for enforcement of the statutes." [Points and Authori- 
ties in Support of Defendant Federal Election Commission's Motion 
to Dismiss the Action for Lack of Jurisdiction, at 9.] 

On October 21, 1976, Attorney General Levi filed a motion to 
dismiss, asserting that the plaintiffs' amended complaint failed to 
set forth a justiciable case or controversy between the plaintiffs 
and the Attorney General. The Attorney General noted that the 
plaintiffs had failed to allege that the Attorney General had either 
enforced or threatened to enforce against them the criminal provi- 
sions of the FECA and its amendments. The Attorney General also 



115 

asserted that the causes of action alleged by the plaintiffs were 
directed at actions taken by officials other than the Attorney Gen- 
eral. 

On October 21, 1976 and November 4, 1976, Common Cause filed 
memoranda in opposition to the motions to dismiss made by the 
FEC and the Attorney General. 

The court, on January 17, 1977, granted the motions to dismiss 
filed by the Clerk of the House, the Secretary of the Senate, the 
Comptroller General, and the Attorney General. As to the Federal 
Election Commission, the court denied its motion to dismiss. How- 
ever, the action was remanded by the court to the FEC "to develop 
a full factual record and make specific findings of fact concerning 
the present nature and extent of any harassment suffered by plain- 
tiffs as a result of the disclosure provisions, including 'economic 
reprisal, loss of employment, threat of physical coercion, and other 
manifestations of public hostility.' " [Order, Socialist Workers v. 
Jennings, Civil Action No. 74-1338 (D.D.C. 1977); Slip Opinion at 3.] 
The FEC was given 6 months to complete the factual record and 
make findings of fact, which then are to be reported to the court. 

Additionally, the court ordered that as to the defendants who 
had been dismissed, plaintiffs were to be allowed to pursue and 
complete discovery against those individuals as if they had re- 
mained parties to the action. 

On March 15, 1977, plaintiffs filed a motion for clarification of 
the order of January 17, 1977, which motion was granted on April 
19, 1977. In the order granting the motion for clarification, the 
court reaffirmed in all respects its order of January 17, 1977, and 
ordered that pursuant thereto, the defendant FEC is not authorized 
to proceed pursuant to 2 U.S.C. § 437(g) nor to make any represen- 
tation or determination that the FEC has "reason to believe" that 
plaintiffs have violated the challenged provision of the FECA, as 
amended. 

On May 19, 1977, defendants filed a notice of appeal with the 
United States Court of Appeals for the District of Columbia Circuit. 

On November 4, 1977, a Clerk's order was filed deferring, until a 
hearing on the merits, appellant's motion for a stay pending the 
outcome of the appeal. 

The appeal was argued on December 6, 1977, and was dismissed 
on December 13, 1977, by a per curiam opinion of the Court of 
Appeals. In its opinion, the Appeals Court declared that the order 
of April 19, 1977 clarifying the order of January 18, 1977, was 
clearly not a preliminary injunction, in the context of the special 
circumstances and procedures of this particular suit, and therefore 
the court was without jurisdiction to review it. The court further 
noted that: 

The District Court obviously was aware of the necessity in 
appropriate cases to provide anticipatory judicial relief 
against prosecutions threatening sensitive First Amend- 
ment Freedoms. The District Court's order of January 17th 
was in the nature of an instruction to a master to prepare 
a record and findings, which order is not appealable. 
Teamsters Local Unions 745, etc. v. Braswell Motor Freight 
Lines, Inc., 428 F.2d 1371, 1373 (5th Cir. 1970), cert, denied, 



116 

401 U.S. 937 (1971). We fail to see how a second order, 
clarifying which procedures the FEC should use, or not 
use, in complying with the order to prepare a record, could 
be any more of an appealable injunctive restraint than the 
first order. [Slip Opinion at 3.] [Footnote omitted.] 

On April 17, 1978, the FEC filed its findings of facts pursuant to 
the January 17, 1977 order of the District Court. 

Plaintiffs moved for summary judgment on June 26, 1978. 

The FEC moved for summary judgment on August 31, 1978. 

On December 29, 1978, plaintiffs, defendants, and intervenor- 
defendant jointly filed a stipulation of settlement along with a 
proposed order, judgment, and decree, whereby the Socialist 
Workers Party and its candidates, for a period up to and includ- 
ing the FEC's reporting period for 1984, would be required to 
keep records regarding campaign contributors but would not be 
required to disclose the information to defendant FEC. 

Status. — The case is pending before the District Court. 

The complete opinion of the Court of Appeals is printed in the 
"Decisions" section of Court Proceedings and Actions of Vital Inter- 
est to the Congress, Part 3, December 31, 1977. 

The complete order of the District Court is printed in the "Deci- 
sions" section of Court Proceedings and Actions of Vital Interest to 
the Congress, Part 1, April 15, 1977. 

United States v. Elko 

Cr. No. 77-739-ALS (CD. Calif.) 
and, 

Brislin v. United States 

No. 78-1558 (Ninth Cir.) 

Brief — On June 9, 1977, an indictment was filed in the United 
States District Court for the Central District of California charging 
Stephen B. Elko and Patricia Brislin with the following offenses: 
Conspiracy (18 U.S.C. § 371); perjury (18 U.S.C. § 1623); subornation 
of perjury (18 U.S.C. § 1622); obstruction of justice (18 U.S.C. 
§§ 1503; 1510); and aiding and abetting interstate travel to commit 
bribery (18 U.S.C. § 2). Additionally, Elko was charged with inter- 
state travel to commit bribery (18 U.S.C. § 1952). 

The indictment charged that Mr. Elko, while serving as Adminis- 
trative Assistant for Representative Daniel J. Flood, conspired with 
Miss Brislin and unindicted co-conspirators William Fred Peters 
and others to accept bribes and did accept bribes in exchange for 
using Mr. Elko's position as Representative Flood's Administrative 
Assistant to attempt to secure accreditation and extensions of eligi- 
bility for five unaccredited trade schools located in Los Angeles to 
participate in various Federal financial aid programs. The schools 
are owned by Automation Institute of Los Angeles, a corporation of 
which Mr. Peters was president. The indictment further charged 
that the defendants and the co-conspirators committed various 
overt acts in furtherance of the conspiracy, including giving false 
testimony before a Federal grand jury in Los Angeles. 

On June 20, 1977, defendants entered pleas of not guilty. 



117 

On August 1, 1977, defendants' motion to dismiss the indictment 
was denied. 

On September 27, 1977, a trial by jury was begun. At that time, 
count seven of the indictment, which charged defendants with 
procuring Deryl Fleming to commit perjury before a Federal grand 
jury, in violation of 18 U.S.C. § 1622 was dismissed and paragraph 
la of count four, which also related to procuring and committing 
perjury before the same grand jury, in violation of 18 U.S.C. § 1503 
was stricken on motion of the Government. 

On October 19, 1977, defendants were found guilty on all remain- 
ing counts. 

On November 10, 1977, defendants' motion for a judgment of 
acquittal or a new trial was denied. 

The defendants were sentenced on January 9, 1978. Defendant 
Elko was sentenced to 3 years on each of counts one through five, 
to run concurrently, for a total of 3 years. Defendant Brislin was 
sentenced to 1 year on each of counts one, three, four and six to 
run concurrently for a total of 1 year. 

Defendants filed motions for reduction of sentence on February 
22, 1978. On March 6, 1978, defendant Brislin's motion for reduc- 
tion of sentence was denied. Defendant Elko's motion was stayed 
for study for possible modification. 

Defendant Brislin filed a notice of appeal on March 16, 1978. 

On March 17, 1978, a brief memorandum and order was filed in 
the District Court detailing the reason for denial of defendants' 
various post-trial motions. 

On June 26, 1978, Mr. Elko's sentence was reduced to 2 years on 
each count, to run concurrently. 

Ms. Brislin's appeal was argued on December 7, 1978. 

On December 11, 1978, the Court of Appeals issued an order 
affirming the judgment and sentence of Ms. Brislin. 

Status. — No further action has been taken. 

Common Cause v. Bolger (formerly Bailar. formerly Klassen) 

Civil Action No 1887-73 (D.D.C.) 

Brief. — Originally filed on October 5, 1973, this action seeks de- 
claratory and injunctive relief against the Postmaster General, and 
the Secretary of the Treasury for actions they allegedly performed 
or failed to perform, in the course of their official duties relating to 
the Congressional franking privilege. 

Plaintiffs, Common Cause and John W. Gardner, then-Chairman 
of Common Cause, amended their original complaint on March 12, 
1974, following the enactment of the Franking Act of 1973 [Pub. L. 
93-191] on December 18, 1973, to incorporate references to the new 
statutory language. 

Plaintiffs allege that the use of the frank for newsletters and 
news releases by a Member of Congress — then a candidate for 
nomination or election or engaged in fundraising for a candidacy — 
and the use of the frank on mail matter such as condolences, 
biographies, pictures or writings laudatory or complimentary to a 
Member on the basis of performance of official duties: (1) abridges 
plaintiffs' First Amendment rights; (2) denies their Fifth Amend- 
ment rights; (3) is an unlawful appropriation of public funds for 



118 

nonpublic purposes; (4) violates the Postmaster General's statutory 
duty; and (5) is an unlawful disbursement of public funds contrary 
to the statutory duties of the Secretary of the Treasury. 

On May 31, 1974, the defendants filed a motion to dismiss, to- 
gether with supporting memorandum, asserting as grounds that: 

The court lacks jurisdiction over the subject matter of this 
action in that neither of the above-named defendants are 
proper parties to this proceeding, the plaintiffs have failed 
to exhaust the administrative remedies available to them, 
the plaintiffs lack standing to maintain this action, and 
* * * the complaint fails to state a claim upon which relief 
may be granted. [Defendant's motion to dismiss, May 31, 
1974.] 

On June 14, 1974, plaintiffs filed a memorandum in opposition to 
the defendants' motion to dismiss as well as an application to 
convene a three-judge District Court. On June 26, 1974, U.S. Dis- 
trict Judge John H. Pratt, denied without opinion defendants' 
motion to dismiss. On July 1, 1974, Judge Pratt signed an order 
convening the three-judge District Court requested by the plain- 
tiffs. A week later, on July 8, 1974, the defendants filed their 
answer to the amended complaint. 

Since September 9, 1974, plaintiffs have attempted to depose and 
serve subpoenas duces tecum on numerous current and former 
Congressional employees. A partial list follows: Victor C. Smiroldo, 
Staff Director of the House Commission on Congressional Mailing 
Standards; Benjamin R. Fern, Chief Counsel, the Senate Select 
Committee on Standards and Conduct; David Ramage, House Ma- 
jority Clerk; Thomas J. Lankford, House Minority Clerk; Joseph J. 
Fahey, Supervisor of the Senate Folding Room; Edmund L. Hen- 
shaw, then Assistant Sergeant at Arms of the House; John M. 
Swanner, Staff Director of the House Committee on Standards of 
Official Conduct; Eli Bjellos, Chief of the House Publications Distri- 
bution Service; Harold Needham, Superintendent of the Senate 
Services Department; James Estep, Manager of the Senate Comput- 
er Center; Buehl Berentson, Executive Director of the National 
Republican Senatorial Committee; Bill Goodwin of the National 
Republican Senatorial Committee; Lee MacGregor, former Aide to 
Senator Robert Griffin; Joyce Baker, a former employee of the 
Senate Republican Policy Committee; Richard Conlon, Staff Direc- 
tor of the House Democratic Study Group; Lynda E. Clancey, Rich- 
ard P. Clifton, and Glee Gomien, Staff Assistants of the Republican 
Senatorial Campaign Committee; Jay Bryant, Special Assistant in 
the Office of the Minority Whip; Edward L. Beach, Staff Director 
and Secretary of the Senate Republican Policy Committee and 
Senate Republican Conference; Edwin F. Feulner, Executive Direc- 
tor of the House Republican Study Committee; Patricia Goldman, 
Director of the Wednesday Group; and Jay D. Sterling, Executive 
Director of the House Republican Research Committee. 

On October 9, 1974, the Senate passed S. Res. 423 regarding Mr. 
Fern, and on October 11, 1974, passed S. Res. 431 regarding Messrs. 
Estep, Needham, and Fahey. The resolutions stated that by the 
privileges of the Senate no evidence of a documentary character 
under the control and in the possession of the Senate may be 



119 

taken, without its permission, by the mandate of process of ordi- 
nary courts of justice; that the employees were authorized to 
appear before the court but not to take with them any papers or 
documents on file in their offices or in their possession; and that 
when the court determined that any of the subpoenaed documents 
and papers had become part of the official transcripts of public 
proceedings of the Senate, and that they were material to the case, 
the court could receive copies of the documents. On November 22, 
1974, a similarly worded S. Res. 436 was passed regarding, Joyce 
Baker. 

The subpoenas of House employees Bjellos, Swanner, Smiroldo, 
Ramage, and Lankford were presented by the Speaker to the 
House for its consideration on September 30, 1974. When the em- 
ployees failed to appear for their depositions, plaintiffs filed mo- 
tions to compel their testimony. 

On October 21, 1974, two of the subpoenaed employees, Eli Bjel- 
los and John Swanner, after receiving a copy of the motion filed by 
the plaintiffs to compel their testimony, wrote letters to Judge 
Pratt. In these letters, each informed Judge Pratt of his view that 
both by statute and by custom of the House, they were forbidden to 
testify or to remove documents belonging to the House without the 
permission of the House. The letters also informed Judge Pratt 
that the question of the subpoenas was under active consideration 
by the House and that the two men were therefore awaiting fur- 
ther guidance from the House on the course of action they should 
follow. 

On December 18, 1974, the House adopted H. Res. 1517 which 
was similar to the Senate resolutions, except that it resolved that: 

When it appears by the order of the court or of the judge 
thereof, or of any legal officer charged with the adminis- 
tration of the orders of such court or judge, that documen- 
tary evidence in the possession and under the control of 
the House is needful for use in any court of justice or 
before any judge or such legal officer, for the promotion of 
justice, this House will take such action thereon as will 
promote the ends of justice consistently with the privileges 
and rights of the House. [H. Res. 1517, 93d Cong. 2d Sess. 
(1974).] 

On January 23, 1975, the House again took up the matter of the 
subpoenas in H. Res. 85, which observed that: 

a large variety and volume of [the materials sought by 
plaintiffs from the five House employees] do not appear to 
bear any essential relationship to the causes of action and 
relief requested in the plaintiffs amended complaint. * * * 
[H. Res. 85, 94th Cong. 1st Sess. (1975).] 

The resolution also stated that, consistent with its privileges, the 
House would act "to promote the ends of justice * * * upon a 
determination of relevancy by the * * * court," and it authorized 
the Speaker to appoint counsel to represent the House and its 
employees in the proceedings. 

On January 27. 1975, oral arguments was held on a renewed 
motion to dismiss which had been submitted by the defendants. 



120 

This motion raised the same arguments that had been made in 
defendants' first motion to dismiss, and made the additional allega- 
tion that plaintiffs had failed to join an indispensable party— the 
Congress — as required by Rule 19 of the Federal Rules of Civil 
Procedure. 

Also discussed at the beginning of the January 27 hearing were 
the subpoenas which plaintiffs had issued. Counsel for the plain- 
tiffs, in answering an inquiry regarding the mass of material being 
sought, stated that although the challenge was to the constitution- 
ality of the franking laws on their face, the discovery was neces- 
sary to show that the statute was designed for and was being used 
for political purposes. The court suggested that perhaps the volume 
of material sought could be reduced, probably through stipulation 
between counsel, since the ultimate argument seemed to be on 
constitutional issues in which the facts involved would be rather 
undisputed. The court directed plaintiffs to submit an itemized list 
of the documents it was seeking within 10 days after it ruled on 
the motion to dismiss, if its ruling was a denial of the motion. 

By a memorandum and order of February 10, 1975, the court 
denied the defendants' renewed motion to dismiss. In rejecting the 
defendants' argument that the plaintiffs had failed to exhaust their 
administrative remedies, the court wrote: 

The claim that plaintiffs have not exhausted their ad- 
ministrative remedies in failing to file complaints concern- 
ing violations of the statute with the House Commission 
on Congressional Mailing Standards or the Select Commit- 
tee on Standards and Conduct of the Senate has not merit. 
Plaintiffs make no contention that there have been abuses 
or violations of the statute, consideration of which are in 
the sole jurisdiction of the House Commission or the 
Senate Committee, but rather that the statute on its face 
is unconstitutional, a matter beyond the jurisdiction of 
such bodies. Obviously, the House Commission and Senate 
Committee have no power to declare an act of Congress 
unconstitutional. It is well settled that the doctrine of 
exhaustion does not apply where the administrative proc- 
ess is inadequate to dispose of the constitutional claim. 
Aircraft & Diesel Corp. v. Hirsch, 331 U.S. 752 (1947). 
[Common Cause v. Klassen, Civil Action No. 1887-73 
(D.D.C. 1975); Slip Opinion at 2.] 

In addition, the court said, neither Congress nor the membership 
of Congress is an indispensable party— and though defendants' 
third allegation— that plaintiffs lacked standing to sue— was more 
serious and required further exploration, it too, was without merit: 

Plaintiffs sue as taxpayers with a taxable income of over 
$6 billion annually and federal tax liability in excess of $1 
billion each year. They assert that federal funds appropri- 
ated under the franking privilege are being used to finance 
the distribution of partisan political literature specifically 
authorized by Section 3210 and that such expenditures of 
federal funds violate the limitations upon the taxing and 
spending power of Congress under Article I, Section 8, and 



121 

contravene the First and Fifth Amendments of the Consti- 
tution. 

Just as importantly, plaintiffs claim status as registered 
voters, representatives of registered voters, candidates for 
Congressional office, and supporters of candidates. It is 
alleged that over fifty members of Common Cause chal- 
lenged incumbent members of Congress in the last election 
and many of its members supported challengers to incum- 
bents. They assert that the present franking privilege con- 
fers substantial political benefits upon incumbents, while 
nonincumbent challengers and their supporters do not 
have the same advantage. As a result, the rights of chal- 
lengers and their supporters to freely associate for political 
purposes are impaired, and the value of their votes is 
diluted and diminished, all in violation of the First 
Amendment. [Baker v. Carr, 369 U.S. 186 (1962).] In addi- 
tion, it is alleged that this practice invidiously discrimi- 
nates in favor of incumbent members in violation of the 
due process clause of the Fifth Amendment. In short, as 
citizens with a particularized interest in the electoral proc- 
ess, plaintiffs claim standing to attack Section 3210 as 
violative of their constitutional rights. 

From the foregoing brief discussion, it is clear to us that 
the plaintiffs have met the test laid down in [Flast v. 
Cohen, 392 U.S. 83 (1968)] and subsequent cases. They have 
asserted (1) an injury in fact, not a generalized complaint 
common to all citizens and taxpayers, and they have dem- 
onstrated (2) a nexus between the injuries suffered and the 
constitutional infringements alleged. [Slip Opinion at 3-4.] 

On February 21, 1975, plaintiffs submitted their "Itemized List of 
Documents Subpoenaed From House Employees." From Victor 
Smiroldo, Staff Director and Counsel of the House Committee on 
Congressional Mailing Standards, and John M. Swanner, Staff Di- 
rector of the House Committee on Standards of Official Conduct, 
plaintiffs sought: 

* * * all complaints concerning possible violation of the 
franking statute, and attachments thereto, or copies there- 
of, brought to the attention of the Commission and all 
memoranda or other writings or copies thereof which 
relate to or reflect the disposition of these complaints[;] 

* * * all advisory opinions and attachments thereto, or 
copies thereof, which relate to the mailing or contemplated 
mailing of franked mail, issued to any Member of the 
House of Representatives or Member-elect surviving 
spouse of any of the foregoing persons, or other House of 
Representatives officials, their agents or employees!;] 

* * * all letters, memoranda or other writings, and at- 
tachments thereto, or copies thereof, which relate to or 
reflect information, guidance, assistance, advice or counsel 
given in connection with the mailing or contemplated 
mailing of franked mail[;] 

* * * all formal or informal correspondence, or copies 
thereof received by the Commission requesting informa- 



122 

tion, guidance, assistance, advice or counsel in connection 
with the mailing or contemplated mailing of franked 
mail[;] 

* * * all informal opinions and attachments thereto, or 
copies thereof, issued by the Commission concerning use of 
the franking privilege^ and] 

* * * all regulations or proposed regulations or copies 
thereof, governing the proper use of the franking privilege 
by any Member of the House of Representatives or 
Member-elect, surviving spouse of any of the foregoing, or 
other House of Representatives official, entitled to send 
mail as franked or any employee or agent of any and all of 
the foregoing persons. [Itemized List of Documents Subpoe- 
naed From House Employees, filed February 21, 1975.] 

From David Ramage and Thomas Lankford, respectively the Ma- 
jority and Minority Clerks of the House of Representatives: 

* * * all documents, correspondence, memoranda, work- 
sheets and other writings, or copies thereof, which reflect 
or relate to the printing or preparation of Congressional 
newsletters or news releases by the House Majority Room 
from December 31, 1973 through the date of this subpoe- 
na^ and] 

* * * all documents, correspondence, memoranda, and 
other writings, or copies thereof, including but not limited 
to books, records or receipts, which relate to or reflect a 
bill or payment for services provided by the House Major- 
ity Room in printing or preparing congressional newslet- 
ters or news releases provided between December 3, 1973, 
and the date of this subpoena. [Id.] 

From Eli S. Bjellos, Chief of the House Publications Distribution 
Service: 

* * * all documents, correspondence, memoranda, work- 
sheets and other writings, or copies thereof, which reflect 
or relate to the monthly work units of the Publications 
Distribution Service from January 1, 1967 through the 
date of this subpoenal] 

* * * all documents, correspondence, memoranda, and 
other writings, or copies thereof, including but not limited 
to books, records or receipts, which relate to or reflect a 
bill or payment for services provided by the Publications 
Distribution Service for the period from December 1, 1973 
to the date of this supoena[; and] 

* * * all documents, correspondence, memoranda, and 
other writings or copies thereof, which relate to or reflect 
the manner of, or handling of mass mailed matter, includ- 
ing, but not limited to instructions on the handling of 
Congressional newsletters for the period from December 1, 
1973 to the date of this subpoena. [Id.] 

Plaintiffs had also sought documents from certain Senate em- 
ployees and when the employees, pursuant to the instructions of 
the Senate, failed to produce them, plaintiffs filed a motion to 
compel the production of the documents. On May 21, 1975, Senate 



123 

employees Fern, Needham, and Estep filed memoranda in opposi- 
tion to plaintiffs' motion to compel them to produce documents, 
stating that the records sought were not material to the subject 
matter of the pending litigation, which is that the franking statute 
is unconstitutional on its face, and the records sought involve use 
of the frank in specific instances, which question is not in issue. 
Furthermore, they stated that the records are internal administra- 
tive records of the Senate which are privileged; that the use of the 
Senate folding room and computer are part of the pay and allow- 
ance of Members of Congress which is a policy question and not a 
legal one; and, in Mr. Fern's case, that the lawyer-client privilege 
applies. Later the three Senate employees filed supplemental 
memoranda invoking the decision of the Supreme Court in East- 
land v. United States Servicemen's Fund, 42\ U.S. 491 (1975), as 
supporting their position of legislative immunity for the records. 

On June 17, 1975, House employees Bjellos, Swanner, Smiroldo, 
Ramage and Lankford filed their memorandum in opposition to 
plaintiffs motion to compel testimony and the production of docu- 
ments. It claimed that plaintiffs' discovery should not be allowed 
since the data sought were irrelevant to a facial attack upon the 
constitutionality of the franking act, the information is privileged 
against forced disclosure under the Speech or Debate clause of the 
Constitution, and the subpoenas were needlessly burdensome. 

The motion by plaintiffs to compel testimony and the production 
of documents was argued on July 16, 1975. On July 30, 1975, the 
court issued a memorandum and order which stated that: 

Objections to this attempted discovery are phrased in 
terms of (1) irrelevance, (2) burdensomeness, and (3) consti- 
tutional immunity under Article 1, Section 6 (The Speech 
and Debate clause) or Article 1, Section 5 (power of each 
body of Congress to enact its own rules). 

The Claim of lack of relevance is predicated on the 
narrow theory that, irrespective of the relevance of the 
requested materials in other frames of reference, they are 
simply irrelevant in a case where the gravamen of the 
complaint is that the statute complained of is alleged to be 
unconstitutional on its face. Aside from plaintiffs' continu- 
ing burden of maintaining standing, it is clear to us that a 
proper resolution of the issues raised by the complaint 
calls for a complete record consisting of the type of docu- 
mentary materials sought to be discovered. For this 
reason, we hold these materials to be relevant and neces- 
sary. 

Likewise, the claims of constitutional immunity are 
without weight. The Brewster case [United States v. Brew- 
ster, 408 U.S. 501 (1972)] and others clearly demonstrate 
that Congressional immunity is limited to legislative activ- 
ities and the claimed use of the franking privilege for 
political activities is not covered even by a most expansive 
definition of the Speech and Debate clause. That the use of 
the franking privilege is not within the language of Article 
1, Section 5, requires no discussion. 



124 

The claim of burdensomeness is more serious. On the 
one hand, the materials requested are relevant to the 
issues raised by the complaint and plaintiffs are entitled to 
a substantial degree of discovery. On the other hand, there 
may be problems concerning the sheer bulk of the materi- 
als requested, about which we are not presently apprised. 
In addition, considerations of fairness dictate that the 
names of the individual members of Congress not be dis- 
closed, as far as it is possible to achieve this result without 
unduly hampering the full and expeditious processing of 
this lawsuit. Where possible, submission under protective 
order may be a reasonable alternative. 

Fortunately, as to the House employees, we are not pres- 
ently faced with any of these problems since these employ- 
ees through counsel have offered to submit voluntarily 
information respecting the use of franked mail broken 
down as to (1) categories of congressional membership to 
compare frequency and volume of franked mail as it varies 
between members depending on estimated difficulties to be 
faced at primary or at election, (2) sources of payment for 
materials mailed, and (3) certain non-public interpretive 
materials, including but not limited to advisory opinions 
and more informal advice. We commend this effort of 
House defendants' counsel and urge counsel for plaintiffs 
to consider and determine the adequacy of such proposal 
and, if unable to agree with House employees' counsel, to 
be prepared to demonstrate the need of further materials. 

Unlike the House employees, the Senate employees have 
made no move to supply any of the requested materials. 
Being satisfied as to plaintiffs' entitlement to substantial 
discovery, we herein require that counsel for Senate em- 
ployees confer with plaintiffs' counsel in an effort to work 
out an accommodation along the general lines of the pro- 
posal made on behalf of the House employees. [Memoran- 
dum and Order, Common Cause v. Bailar, Civil Action No. 
1877-73 (D.D.C. 1975); Slip Opinion at 3-4.] 

The court granted plaintiffs' motion to compel discovery from the 
Senate and House employees, "it being understood that the exact 
nature and bulk of the materials to be produced are left to further 
negotiation between counsel for the respective parties." 

On March 1, 1976, the court issued an order approving a stipula- 
tion between plaintiffs and Senate employees Estep and Needham, 
and a stipulation between plaintiffs and House employees Ramage, 
Lankford, Bjellos and Smiroldo. 

The stipulation regarding Estep, Manager of the Senate Comput- 
er Center, and Needham, Superintendent of the Senate Services 
Department stated that plaintiffs were to receive a "User's Guide 
for the Senate Computer Center" and a description of the computer 
programs used; a compilation of the work orders from Senators 
designating the categories of individuals who are to receive franked 
mail, the work order number and week thereof; a compilation 
detailing the categories of names maintained by the Senate Com- 
puter Center for each Senator, the number of names in each cate- 



125 

gory, and the code designation of each category; the number of 
address labels affixed to franked mail for each Senator for each 
day or week; and the right to inspect copies of newsletters in the 
possession of the Senate Service Department. The stipulation fur- 
ther provided that Estep and Needham would not be further 
deposed. 

Additionally, a protective order was issued defining: (1) the infor- 
mation on the volume of mail for each Senator that may be pub- 
licly filed; (2) the information that is to be available to plaintiffs' 
counsel under seal; and (3) the extent to which the information 
available to plaintiffs' counsel under seal may be publicly filed in 
this action. The Senate employees will be given a list of all Sena- 
tors with certain characteristics of the State each represents, 
voting percentages in elections since 1966, information on reelec- 
tion, section of the country, and other general information. The 
Senate employees will then substitute a code for the name of each 
Senator, the key to which will be kept in camera and not made 
available to plaintiffs or defendants or their counsel or anyone else. 
If a party needs the information he must first serve notice on the 
Senate employees' counsel. Finally, all documents sought by plain- 
tiffs from others will first be submitted to the court and the code 
will be substituted for the Senator's name, deponents and witnesses 
will use only the code, and plaintiffs will refer to individual Sena- 
tors only by their code. 

As for Senate employee Fern, Chief Counsel of the Senate Select 
Committee on Standards and Conduct, the court stated: 

Plaintiffs seek production of the following internal docu- 
ments of the Senate Select Committee on Standards and 
Conduct: 

(A) The actual text of (a) all complaints to the 
Select Committee concerning the use of the frank 
by Members of the Senate and the disposition 
thereof, (b) all written requests from Members of 
the Senate to the Select Committee for advice 
concerning the use of the frank and the written 
responses thereto and (c) deponent Fern's notes or 
other memoranda concerning oral requests for 
advice and oral responses, or, in lieu of the actual 
text of the documents, a summary of each docu- 
ment with the full document made available to 
plaintiffs' counsel to verify the accuracy of the 
summaries; and 

(B) All internal memoranda of the Committee 
concerning the use of the frank which have been 
approved by the Select Committee or used as the 
basis for rendering advice to Members of the 
Senate. 

Actual text was defined by plaintiffs counsel a> a COD} 
of the full text of the document or the original document 
itself, with only the identification of the Senator deleted. 
[Order, Common Cause v. Bailor, Civil Action No. L887 78 

(D.D.C. March 1, 1976); Slip Opinion at 3.] 



126 

The court noted that after the Select Committee had decided not 
to allow Mr. Fern to produce the documents, the Senate on Decem- 
ber 17, 1975, had adopted a resolution reaffirming a previous 
Senate resolution prohibiting the disclosure of the internal records 
of the Select Committee. On January 27, 1976, the Select Commit- 
tee had again considered the matter and determined that under 
order of the Senate it could make no change in its position. Fern 
had offered to supply summaries of documents in list (A) above, but 
plaintiffs had insisted upon inspection of the actual records to 
insure the accuracy of the summaries, and the Select Committee 
had rejected this proposal. The court continued: 

We have given careful thought to the contentions of the 
parties. It is conceded that the documents themselves are 
relevant to the issues in this case. Whether the documents 
are privileged may be determined by whether they relate 
to the business of Senators or the business of candidates 
for the Senate. This approaches a capsule description of 
the ultimate issue in this case. We can agree that a privi- 
lege for Senatorial documents exists, without deciding that 
these documents are Senatorial and therefore privileged. 

At this stage in the lawsuit we think it better to act as if 
the documents were Senatorial and privileged, with the 
ultimate decision reserved. Inspection by plaintiffs coun- 
sel, even with all safeguards, would in some sense defeat 
the privilege, if in ultimate analysis these documents were 
found to be properly entitled to protection. However, there 
is no doubt that the privilege claimed, if it exists, is not 
absolute but is defeasible upon a showing of proper need. 
As the recent Watergate experience has taught us, a Presi- 
dent's claim of absolute privilege on the grounds of confi- 
dentiality must yield when a proper showing is made that 
the overriding considerations of the public interest require 
disclosure. The body to make such a determination is the 
judiciary after an in camera inspection of the material. 
United States v. Nixon [418 U.S. 683 (1974)]. 

It is our judgment that plaintiffs have up to this point 
failed to demonstrate the showing of particular need to 
overcome the Select Committee's claim of privilege. It may 
well be that the summaries themselves plus additional 
discovery in other areas will satisfy the plaintiffs' eviden- 
tiary problems and will make it unnecessary for us to 
order at this time the production of the documents them- 
selves. On the other hand, we see no reason why Mr. Fern 
should not be required also to supply summaries of "all 
internal memoranda" described in subparagraph (B) above. 
It is understood that the entire file of original documents 
is quite limited in size. Accordingly, it is by the Court, 

Ordered, that plaintiffs' motion to compel production of 
original documents by the witness Fern be and is hereby 
denied without prejudice; and it is 

Further ordered, that the witness Fern be and is hereby 
ordered to produce summaries of all documents covered in 
subparagraphs (A) and (B) above. [Id. at 4-5.] 



127 

The stipulation with the House employees stated that plaintiffs 
will receive: (1) the sources of funds used to defray printing costs 
for mass-mailed franked materials on a per seat breakdown, and 
the banks and account numbers where the proceeds of the printing 
operations are kept; and (2) access to the files of the House Publica- 
tions Distribution Service (PDS) for the purpose of preparing com- 
pilations of the per seat volume and timing of franked mail, with 
the research and results to be done either by PDS at plaintiffs' 
expense or by plaintiffs, with PDS then compiling the information 
and using a code for a Member's name. The information will then 
be compiled and coordinated with coded numbers and a coded list 
of the attributes of the Member similar to those of the Senate, with 
similar access and protections. Plaintiffs will also receive from Mr. 
Smiroldo of the House Commission on Congressional Mailing 
Standards, at plaintiffs' expense: 

copies of all documents and other writings pertaining to 
all formal complaint proceedings, pending or completed. In 
addition, plaintiffs will receive copies of all documents in 
the files of the Commission that embody (a) formal or 
informal advice rendered by the Commission and/or its 
staff to Members of Congress regarding their use of the 
franking privilege; or (b) policy statements or regulations 
of general applicability adopted by the Commission regard- 
ing permissible uses of the franking privilege by Members 
of Congress; or (c) communications of the Commission or 
its staff with third parties outside the House of Repre- 
sentatives that relate to the franking privilege. The only 
omissions from these materials will be such details as 
identify a particular Congressman. 

This voluntarily offered material included: 

a. Correspondence and other communications from the 
Commission to Members of Congress or their staffs, advis- 
ing a Member with respect to the frankability of a pro- 
posed mailing. 

b. Correspondence and other communications from 
Members of the House Commission staff to Members of 
Congress or their staffs that provide such advice. 

c. Correspondence and other communications relating to 
the franking privilege, between, on the one hand, the 
House Commission or its staff and, on the other hand, 
individuals other than Members of Congress or their staff. 

d. Internal staff memoranda addressed to the Commis- 
sion in cases where staff memoranda have been adopted by 
the Commission as the basis for its final action in (i) 
rendering advice on the frankability of a proposed mailing, 
or (ii) adopting policies or regulations of general applica- 
tion with respect to permissible uses of the franking privi- 
lege by Members of Congress. [Stipulation and Protective 
Order Regarding Production of Information and Docu- 
ments by Certain Employees of the House of Representa- 
tives, Common Cause v. Bailor, Civil Action No. 1887-73 
(D.D.C. March 1, 1976) at 5-6.] 



128 

Furthermore, still a different code will be used in place of Mem- 
bers' names in this compilation than in the previous one, and it 
was: 

specifically understood and agreed that Mr. Smiroldo will 
not provide Plaintiffs with information or access to other 
materials consisting of (a) internal memoranda that were 
not adopted by the Commission as the basis for advice or 
policy decisions by the staff or the Commission, Ob) re- 
quests for advice by members, except as otherwise pro- 
vided for above, and (c) either the identity or the code 
number for the members involved. [Id. at 6.] 

Finally, the court's order stated that with respect to subpoenas 
issued by plaintiffs to administrative assistants or aides of all 100 
U.S. Senators, which commanded each one to bring with him "all 
documents, correspondence, memoranda, and other writings or 
copies thereof, which relate to or reveal the types of lists, 'codes,' or 
groupings of names maintained for mailing purpose in the Senate 
computer since December 18, 1973," in conjunction with each one 
being deposed at 15-minute intervals from February 18 to 23, 1976, 
it was understood that counsel for both parties were trying to work 
out a solution including the directing of one subpoena to a single 
staff member who would represent all 100 Senators in the furnish- 
ing of documents anonymously, and it ordered the proposed proce- 
dure as approved, with the court to be advised of the precise 
procedure agreed upon. 

On March 9, 1976, the House passed H. Res. 1082 giving its 
consent to the House employees to furnish the documents request- 
ed in the stipulation. 

The Senate passed S. Res. 411 on March 24, 1976, which author- 
ized the preparation of a list showing the codes used by each 
Senator on work orders for mailings sent under the frank, and 
authorizing employees to furnish the meaning of such codes. 

On April 7, 1976, the 100 administrative assistants moved for a 
protective order from the court limiting the scope of discovery to 
the terms of S. Res. 411. 

On July 1, 1976, the House of Representatives passed H. Res. 
1382 authorizing the House Commission on Congressional Mailing 
Standards to seek to intervene in the case. The motion to intervene 
was filed on August 6. 

On September 9, an order was filed granting the Commission's 
motion. 

In its answer to the complaint filed by Common Cause, the 
Commission denied the allegations asserted in each cause of action, 
contested the courts jurisdiction over the subject matter, attacked 
the standing of the plaintiffs, answered that the complaint failed to 
state a claim upon which relief could be granted, and asserted that 
the plaintiffs had failed to exhaust the administrative remedies 
available to them. 

On September 24, 1976, Judge Pratt, without comment, denied 
the April 7th motion for a protective order filed by the Senate 
administrative assistants. 

On January 31, 1977, a copy of a letter dated January 21, 1977, 
from Senator Lee Metcalf to Cornelius Kennedy, the attorney for 



129 

the Senate employees, was filed with the court. Senator Metcalf 
was writing as the Chairman of the Senate's Ad Hoc Committee on 
Legislative Immunity, which was considering the actions to be 
taken in the Common Cause v. Bailar lawsuit. The letter noted the 
large volume of information which the Senate had already author- 
ized be turned over to Common Cause in July of 1976. Senator 
Metcalf asserted that categories of names used before the statute 
went into effect on December 18, 1973, or those in the computer 
but not used after the statute went into effect, cannot represent 
any priority use of these categories for political purposes. Further- 
more, he alleged, the actual use made of these categories of names 
supersedes any manuals or instructions in any Senate office, since 
the actual use would reflect the ultimate decisions with respect to 
the use of the computer and the categories of names stored therein. 
Senator Metcalf stated that the information furnished had involved 
a substantial cost and had resulted in a significant disruption of 
the work in all 100 Senate offices. He noted that despite the heavy 
workload of the Senate leadership at the beginning of the 95th 
Congress, the Senate Democratic Conference had met on January 
13, 1973, to discuss this case, and had advised the Ad Hoc Commit- 
tee that Common Cause had persisted in attempts to go beyond the 
actual use of the frank as reflected by the information which the 
Senate had already provided, and Common Cause had resisted 
efforts by Mr. Kennedy to reach an agreement on the information 
already supplied by the Senate employees in connection with the 
proceeding. The Ad Hoc Committee was instructed to study the 
case further and report its findings to the Senate Democratic Con- 
ference no later than March 1, 1977. 

Attorneys for the parties appeared at a status call on March 14, 
1977 before U.S. Circuit Judge Malcolm R. Wilkey and U.S. District 
Judge John R. Pratt. During the discussion, Cornelius Kennedy, 
the attorney for the Senate parties, was asked why the Senate had 
not yet furnished Common Cause with all of the computer codes 
promised. Mr. Kennedy replied that they had furnished all the 
codes they stipulated would be filed, which were the codes used for 
mass mailings. Judge Wilkey said he understood that all codes 
would be furnished, not just those that had actually been used for 
mass mailings since all codes could be used for mass mailings. 
Common Cause verified that it wanted all codes, not just those that 
had actually been used. They also said that they wanted the data 
on mailings for 1972. Mr. Kennedy said that while part of those 
data was available, the key to producing the data in any useable 
form was the computer center work order, and these work orders 
do not exist because they were not kept. 

Regarding the letter which Senator Metcalf had filed with the 
court on January 31, 1977, the following colloquy took place: 

Judge Wilkey. And what is the style of this ad hoc 
committee that issued the 2 volume report [to the Senate 
on this suit, copies of which Mr. Kennedy provided the 
court and plaintiffs at this status call]? 

You referred to its appointment last March, I think. 

Mr. Kennedy. Last February, actually. 

Judge Wilkey. What is the style of it? 



130 

Mr. Kennedy. It is the ad hoc committee on legislative 
immunity. It achieved that title, I guess, because it was 
involved specifically in this case. 



Judge Wilkey. Well, we have read with some interest 
this 3 page letter of Senator Metcalf as to what has been 
done, specifically not exactly what has been done, but 
what hasn't been done, and I am struck by a certain 
misconception that is in the letter. I think there is a 
misconception in this letter, and you as a lawyer — Senator 
Metcalf is a lawyer, he once was. 

Mr. Kennedy. He was a State Supreme Court Justice. 

Judge Wilkey. Of the State of Montana. 

Judge Pratt. That's right. 

Judge Wilkey. There is a certain misconception that the 
relevance of these matters is to be determined by one of 
the parties. That's not so. The relevance of these matters 
is for the Court, after argument by the parties, but the 
determination of relevance cannot be made in this case, or 
any other case, by one of the parties. And I think that is a 
fundamental misconception which should be set straight, 
because the Court is going to act on the basis that rel- 
evance will be determined by the Court, after argument, of 
course, by the parties. 

Thank you, Mr. Kennedy. [Transcript of Status Call of 
March 14, 1977 at 23-25, Common Cause v. Bailar, Civil 
Action No. 1887-73 (D.D.C.).] 

Later in the status call, the following exchange took place: 

Judge Pratt. Will you be communicating with your 
principals between now and the 4th of April, Mr. Ken- 
nedy? 

Mr. Kennedy. Very much so, Your Honor. 

Judge Pratt. I think you should impress on them the 
concern of the Court with the present lack of discovery on 
the part of the Senate, and also the fact that we have not 
only the subpoena, the stipulation of January 7, 1976, the 
Court's order incorporating the stipulation, the Court's 
order of September 24, 1976, having to do with our denial 
of motions for relief from our March 1st, 1976 order, and 
that one of these days we are going to have to bite the 
bullet. And I think the record should show that you filed 
this committee report in two volumes, entitled "Communi- 
cation with constituents of codes the Senator's duty to 
inform the people, the report of the ad hoc committee on 
legislative immunity, United States Senate, to the Senate 
Democratic and Republican conferences, dated March 1, 
1977." 

I assume that is the complete report that Senator Met- 
calf s committee will be presenting; is that correct? 

Mr. Kennedy. It is the report which they are submitting 
to the two conferences. I cannot anticipate what action the 



131 

conferences will take, or whether they will ask for further 
reports. 

Judge Pratt. I see. Thank you, Mr. Kennedy. 

Judge Wilkey. Mr. Kennedy, I view this matter, and I 
am sure Judge Jones does too, this matter of all the code 
categories have not been produced, code categories which 
were used or could be used for the frank[ed] mail is inter- 
pretation we put on the original subpoena, on the stipula- 
tion which you entered, and on two orders, and this cannot 
long go with the Court's orders and your stipulation is 
ignored. 

Now, that is just about as plain as we can make it at 
this time. We're going to wait and see what the facts show, 
but on the facts as they stand now you have a problem. 

Mr. Kennedy. Thank you, Your Honor. 



[Transcript of Proceedings of March 14, 1977 at 34-35, 
Common Cause v. Bailar, Civil Action No. 1887-73 
(D.D.C.).] 

On April 1, 1977, plaintiffs filed with the court a list of docu- 
ments which had not been produced by James Estep, the Manager 
of the Senate Computer Service and by the 100 Senate administra- 
tive assistants. Sought from Mr. Estep was data for 1972 and the 
codes maintained in the Senate computer for franked mail pur- 
poses by each Senator and the number of names in each category. 
From the 100 administrative assistants the plaintiffs still sought 
the identity of the categories of names maintained in the Senate 
computer for franked mail purposes since December 18, 1973, and 
documents which contained general or specific instruction on the 
use of the names in the computer for franked mail purposes. 

On April 4, 1977, another status call was held. Mr. Kennedy 
pointed out that neither the Senate nor any of its employees are 
parties in this case, and that the Senate employees are all subject 
to Senate Rule 30, providing that no memorial or other paper 
presented to the Senate shall be withdrawn from its files except by 
order of the Senate. In addition, he said, these employees are 
bound by S. Res. 411, 94th Congress, 2d Sess. (March 24, 1976), and 
the information sought by Common Cause is under the control of 
the Senate and the individual Senators. Mr. Kennedy reviewed the 
reasons why the Senate takes the position that the franking privi- 
lege is part of the official responsibilities and duties of the Mem- 
bers of the Senate to keep constituents informed. He pointed out 
that despite this constitutional assertion, the Senate in this action 
had acted within the judicial framework, appealing court decisions 
and seeking protective orders, and that the Senate had directed 
him, with respect to discovery, to work out an arrangement agree- 
able to the court and the plaintiffs, but if none could be worked 
out, then the Senate would appeal any decision adverse to its 
interests. He stated he had earnestly tried to work out what docu- 
ments would be produced, but quoted counsel for Common Cause as 
telling him, "But when are you going to understand I don't want to 
work this out with you, stop wasting your time?" [Transcript of 



132 

Status Call of April 4, 1973, at 10. Common Cause v. Bailor, Civil 
Action No. 1887-73 (D.D.C.).] He also asserted that plaintiffs didn't 
need this information and alleged that this could be shown by the 
fact that they had distorted the information they had already 
received. 

Mr. Kennedy also told the court that on April 1, 1977, the Senate 
had passed Senate Rule 48 prohibiting Senators from abusing the 
nonfranking data stored in the Senate's computer by using it for 
franked mail purposes, regardless of whether or not the statute 
challenged in this action is found unconstitutional. He explained 
Rule 48 to the court step by step, and then told the court that the 
items sought by plaintiffs which they said had not been provided 
either did not exist, or else, with the consent of the Senate which 
Mr. Kennedy would seek, they would be provided to the court for 
in camera, inspection, so that the court might rule on their rel- 
evancy. Mr. Kennedy said that the reason they were doing this is 
that since the Senate and its employees are not parties to the 
actions they could not confront false implications at trial. 

Finally, Mr. Kennedy read a letter from Senator Metcalf, and 
placed it in the record at the court's request. The letter noted that 
under the direction of the joint leadership of the Senate, the Ad 
Hoc Committee on Legislative Immunity had been studying the 
matters in connection with the lawsuit for over a year, and its 
report had been adopted by both the Senate Democratic and Re- 
publican Conferences and issued as Senate Document No. 95-33 on 
March 28, 1977. The Ad Hoc Committee concluded that the dis- 
semination of information relating to proposed or enacted legisla- 
tion, the administration of legislation by the executive, or the 
review of such legislation by the judiciary are all an integral part 
of a legislator's function and are indistinguishable from a Senator's 
legislative activities, and that the distribution of this information is 
part of his official business and is entitled to be mailed under the 
frank. The letter declared that the Senate had gone to extraordi- 
nary lengths to serve the interests of justice in this action by 
authorizing and permitting its employees to testify and by supply- 
ing voluminous materials to the plaintiffs. However, the Ad Hoc 
Committee had reviewed the request for additional materials made 
upon the administrative assistant of every Senator and had deter- 
mined that there was no connection between the materials sought 
and the use of the frank by Senate offices. Therefore, the Ad Hoc 
Committee was not recommending that the Senate authorize the 
subpoenaed administrative assistants to turn over these materials. 
The letter concluded: 

The Senate cannot simply accede to excessive demands 
of this kind. Not only do such demands disrupt the oper- 
ation of the Senate and involve extensive costs, they also 
intrude without cause into its functions and privileges. 

The committee recognizes that there is at present no 
statute defining the scope of the Senatorial privilege in- 
volved here. While there is a body of case law defining the 
express immunity reserved to the Congress in the Consti- 
tution, the Courts have yet to address the privilege of the 
Houses of Congress deriving from the supremacy of each 



133 

branch of the government within its own assigned area of 
Constitutional responsibilities. 

Whether the privileges and immunities of the Senate 
can be properly invoked in the case now before this Court 
is, of course, for the Courts to decide— just as the Courts 
will decide all other judicial questions raised, including 
what information is relevant and necessary. 

Until there is a final judicial determination to the con- 
trary, however — and after appeal, if necessary, as to the 
issues of relevancy and privilege — the committee, with the 
concurrence of both the Senate Democratic and Republi- 
can Conferences, will continue to contest the relevance of 
the additional materials sought by the plaintiff and to 
assert the privileges and immunities of the Senate in order 
to preserve and protect the powers and prerogatives grant- 
ed and reserved to the Congress by the Constitution. 
[Letter from Senator Lee Metcalf to Cornelius B. Kennedy, 
dated April 4, 1977.] 

Mr. Kenneth J. Guido, Jr., Counsel for Common Cause, disputed 
the assertions of Mr. Kennedy, and asked that the materials sought 
in the subpoena be turned over to the plaintiffs. 

At the conclusion of the status call, the court directed Mr. Ken- 
nedy to submit the materials to the court for in camera inspections. 

On April 29, 1977, the Senate passed S. Res. 136, 95th Cong., 1st 
Sess. (1977), which authorized Mr. Kennedy, counsel for the subpoe- 
naed Senate employees, to furnish to the District Court, for in 
camera inspection: 

"(1) information on volume of mail for the year 1972 
with the identity of the Senators coded, set out in the 
same fashion as the information previously authorized to 
be submitted to the court and to the plaintiffs for 1973, 
1974, and 1975; 

"(2) those copies of what are known as computer code 
counts, identifying the categories of codes maintained in 
the Senate computer by each Senate office and the number 
of names in each category, which were retained by the 
computer Center in 1975, and the computer code count 
made near the close of 1976 for the Senate offices not 
included in the 1975 group, in each case with the identity 
of the Senators coded; * * *" 

The resolution further provided that Mr. Kennedy was to furnish 
from the 100 Senators' administrative assistants: 

[A] form that the identity of the Senator is coded consist- 
ent with the manner in which earlier information was 
submitted in this case, the meaning assigned to such codes 
to the extent that he may have that information in his 
possession, as well as such general or specific instructions 
which he has in his possession with respect to the use of 
the code categories maintained by that office, * * * 

On May 2, 1977, U.S. District Judge George L. Hart was named 
to replace Judge William B. Jones on the three-judge District 
Court. 



134 

At a status call on May 25, 1977, Mr. Kennedy was directed to 
file the requested documents in camera by June 15, 1977. The court 
stated that before it would release any of the information to the 
plaintiffs it would notify the Senate and give it 60 days to obtain a 
stay order. 

On August 31, 1977, Common Cause filed a notice of taking a 
deposition, on September 14, 1977, of the National Records Center, 
Accession and Disposal Branch, General Services Administration. 
The National Records Center had also been served with a subpoena 
duces tecum commanding the appearance of a representative to be 
designated by them at such deposition, and further commanding 
that the representative so designated produce for inspection; (1) 
copies of all Records Transmittal Receipt Forms which had been 
transmitted to the National Records Center since January 1, 1972; 
(2) copies of all Records Reference (Retrieval) Requests which have 
been transferred from the National Records Center since January 
1, 1972; and (3) all documents, correspondence, memoranda, and 
other writings, or copies, received by the National Records Center 
relating to the use by the Senators so designated or their agents 
and/or employees, of direct mail, the Congressional mailing privi- 
lege, and/or direct mailing lists and/or techniques which were 
transmitted to the National Records Center since January 1, 1972. 

On September 2, 1977, the Federal defendants filed a report 
regarding a meeting held on July 20, 1977, between the Federal 
defendants, the intervening defendant and the Senate deponents 
and a subsequent agreement to provide plaintiff with an opportuni- 
ty to inspect documents of the U.S. Department of Agriculture 
relating to the Department of Agriculture's farmers' bulletins pub- 
lications program. 

On September 7, 1977, the National Records Center, Accession 
and Disposal Branch, General Services Administration filed an 
objection to the production, by September 14, 1977, of the various 
documents as specified in the subpoena duces tecum. 

An order was filed on September 23, 1977, directing that the 
material submitted to the court for in camera inspection as author- 
ized by S. Res. 136, 95th Cong., 1st Sess. (1977), be retained by the 
court for 60 days pending appeal and that, if no appeal has been 
noted within 60 days, the material be released to Common Cause. 

Notices of appeal to the Court of Appeals for the District of 
Columbia Circuit and to the U.S. Supreme Court by Peter Stav- 
rianos and the other Senate employees, nonparty deponents, of the 
order, were filed on October 21, 1977. 

Plaintiffs moved the court on October 26, 1977 to compel the 100 
Senate Administrative Assistants to produce documents. 

On November 15, 1977, the Senate agreed to S. Res. 325, 95th 
Congress, 1st Sess. (1977) which authorized the counsel for the 
subpoenaed Senate employees to furnish the material for use in the 
proceeding without restriction to in camera use, but subject to the 
protective provisions in the previously approved stipulation. The 
resolution also authorized the counsel for the subpoenaed Senate 
employees to file for leave to intervene on behalf of the Senate in 
order to protect and defend the duties, responsibilities, rights and 
privileges of the Senate under Article I of the Constitution. 



135 

A memorandum in opposition to plaintiffs' motion to compel the 
100 Senate Administrative Assistants to produce documents was 
filed on November 17, 1977 by the 100 Senate Administrative 
Assistants. 

On November 29, 1977 the Senate employee deponents filed a 
motion to withdraw their notice of appeal. On the same day, an 
order was filed granting the motion to withdraw the separate 
notices of appeal to the U.S. Supreme Court and the U.S. Court of 
Appeals for the District of Columbia Circuit. 

The motion of plaintiffs to compel the 100 Senate Administrative 
Assistants to produce documents was argued and granted on No- 
vember 29, 1977 and an order granting the motion was filed on 
December 19, 1977. 

Status.— The case is pending before the three-judge court in the 
U.S. District Court for the District of Columbia. 

The full text of the memorandum and order of February 10, 
1975, was printed in the "Decisions" section of the report of Court 
Proceedings and Actions of Vital Interest to the Congress, April 15, 
1975. 

The full text of the court's "Memorandum and Order" of July 30, 
1975, the "Stipulation and Protective Order Regarding Production 
of Information and Documents By Certain Employees of the House 
of Representatives," filed on March 1, 1976, and the "Order" of the 
court filed on March 1, 1976, were printed in the "Decisions" 
section of the report of Court Proceedings and Actions of Vital 
Interest to the Congress, April 15, 1976. 

The full texts of the orders of September 23, 1977 and December 
23, 1977 are printed in the "Decisions" section of Court Proceedings 
and Actions of Vital Interest to the Congress, Part 3, December 31, 
1977. 

Lewis v. Chisholm 

Civil Action No. 78-0196 (D.D.C.) 

Brief— O'Dell Lewis, a former legislative assistant to Representa- 
tive Shirley Chisholm, filed this suit along with Lewis' ex-wife Judy 
Ann Lewis in the United States District Court for the District of 
Columbia on February 3, 1978. Named as defendants are Congress- 
woman Shirley Chisholm; Carolyn J. Smith, Representative Chis- 
holm's administrative assistant; Muriel Morrissey, chief legislative 
assistant to Congresswoman Chisholm; and Colleen O'Connor, press 
secretary to Representative Chisholm during the period of Mr. 
Lewis' employment with Congresswoman Chisholm. 

The complaint states five causes of action. The first cause of 
action is a breach of contract claim charging defendants with em- 
ployment discrimination based on sex in violation of the House 
Fair Employment Practices Agreement by discharging Lewis be- 
cause of his sex, the second cause of action alleges employment 
discrimination based on sex in violation of the Fifth Amendment to 
the Constitution. The third cause of action is one of injurious 
falsehood, claiming that Ms. Smith submitted a false statement to 
the U.S. Department of Labor to the detriment of Mr. and Mrs. 
Lewis. 



136 

The fourth cause of action alleges interference with a prospective 
advantage and defamation on the basis of a letter allegedly sent by 
Representative Chisholm to a prospective employer of Mr. Lewis. 
The final cause of action is a claim of libel and slander based on 
statements allegedly made to a reporter for the New York Post and 
printed in that newspaper. 

The complaint seeks $50,000 in compensatory damages, $500,000 
in punitive damages and an order prohibiting defendants from 
making statements concerning the plaintiffs. 

Defendants Chisholm, Smith and O'Connor filed an answer on 
February 23, 1978. Included in the answer was a counterclaim by 
defendant Smith for compensatory and punitive damages in the 
amount of $250,000. The counterclaim alleges that Mr. Lewis' claim 
against Ms. Smith is spurious, malicious and brought in bad faith 
solely for the purpose of harassing defendant Smith. 

Defendant Morrissey also filed an answer on February 27, 1978. 

On March 8, 1978, plaintiffs filed an answer to Ms. Smith's 
counterclaim. 

On October 17, 1978, Congresswoman Chisholm, Ms. Smith and 
Ms. O'Connor filed a motion to dismiss. 

The case was dismissed by District Judge Robinson on Decem- 
ber 4, 1978. 

Plaintiffs filed a notice of appeal on December 29, 1978. 

Status. — No further action has been taken. 

The order of the District Court is printed in the ' "Decisions" 
section of this report at 283. 

Abney v. United States Capitol Hill Policeman 

Civil Action No. 78-1633 

Brief. — On August 30, 1978, Mr. Stacey Abney filed an action in 
the U.S. District Court for the District of Columbia seeking $1 
million in damages against an unnamed member or members of 
the Capitol Police. 

In his complaint alleges that Mr. Abney was the victim of police 
brutality and harassment. 

On the same day the complaint was filed, Judge George Hart 
dismissed it pursuant to 28 U.S.C. § 1915(d) which states: 

(d) The court may request an attorney to represent any 
such person unable to employ counsel and may dismiss the 
case if the allegation of poverty is untrue, or if satisfied 
that the action is frivolous or malicious. 

Status. — The time for appeal has expired. 

Martin Tractor Company v. Federal Election Commission 

No. 78-2080 (D.C.Cir.) 

Brief.— This action, filed on July 7, 1978, names the Federal 
Election Commission and its individual members including J. Stan- 
ley Kimmitt, Secretary of the Senate, and Edmund L. Henshaw, 
Clerk of the House, as defendants. The plaintiffs are Companies, 
Political Action Committees (hereinafter "PAC") organized by 
those companies, Corporate and PAC officers and one hourly em- 
ployee who works for one of the plaintiff companies. 



137 

The plaintiffs state that in 1971, the Federal Election Campaign 
Act (hereinafter "FECA") codified existing judicial decisions by 
excepting from its definition of a prohibited corporate "contribu- 
tion" or "expenditure" the costs incurred by a corporation in estab- 
lishing, administering and soliciting contributions for a separate 
segregated fund to be used for political purposes (a "political action 
committee" or "PAC"). Prior to the 1976 Amendments, plaintiffs 
further state, a corporation and its PAC could communicate with 
all of the corporation's employees for the purpose of securing their 
financial contributions to the PAC, subject only to the proviso that 
no PAC contribution or expenditure could be made with moneys 
"secured by physical force, job discrimination, financial reprisals, 
or the threat of force * * * " 18 U.S.C. § 610. Pursuant to the 1976 
amendments to the FECA, the plaintiffs declare, 18 U.S.C. § 610 
was repealed, with the prohibitions formerly contained in 18 U.S.C. 
§ 610 against corporate contributions or expenditures being placed 
in 2 U.S.C. § 441b. 

Additionally, and the plaintiffs note, of particular significance to 
this action, 2 U.S.C. § 441b restricts the right of a corporation to 
communicate with some of its employees. Further, the prohibitions 
and restrictions which are applicable to a corporation under this 
section apply equally to a PAC created by a corporation. 

The complaint states that 2 U.S.C. § 441b divides a corporation's 
employees into two classes. One such class, defined in the 1976 
Amendments as "executive and administrative personnel", consists 
of those employees who are "paid on a salary rather than hourly 
basis and who have policymaking, managerial, professional, or su- 
pervisory responsibilities." The other such class consists of all 
other employees not defined as executive or administrative person- 
nel ("hourly employees"). While the corporation and the PAC may 
communicate without restriction (except for the prohibition against 
the use of specified coercive tactics) with the corporation's stock- 
holders and with its executive or administrative personnel, con- 
cerning contributions to its PAC. They may communicate with the 
corporation's hourly employees (to solicit contributions to its PAC) 
not more than twice in 1 year, and such communications must be 
in writing and addressed to those hourly employees at their resi- 
dences. 2 U.S.C. § 441(b)(4). Additionally, the plaintiffs state that 
the FECA does not define the term "solicitation". 

The plaintiff companies, PAC's and their officers assert that by 
restricting their right to communicate with the companies' hourly 
employees, the statute violates one or more of their rights of free- 
dom of speech, assembly, association, and the right to hear, guaran- 
teed by the First Amendment to the Constitution. 

Mr. Bramlage, the hourly employee-plaintiff, also asserts that 
the FECA as amended, by dividing employees into two classes and 
restricting the free flow of information between those classes, dis- 
criminates against him in violation of his right to due process of 
law under the Fifth Amendment. 

Plaintiffs further assert that: 

[B]y failing to define the term "solicitation", [FECA] cre- 
ates an impermissible vagueness which prevents one or 
more Plaintiffs from determining the meaning of such 



138 

term, causes such Plaintiffs to be uncertain as to the 
extent and application of the prohibitions of 2 U.S.C. 
§ 44 If, and when combined with the threat of criminal 
sanctions, restrains one or more of the Plaintiffs in their 
communications and conduct, and in their administration 
of political action committees, in violation of one or more 
of such Plaintiffs' rights to due process of law guaranteed 
by the Fifth Amendment to the Constitution and their 
rights of freedom of speech, assembly, association, and the 
right to hear, guaranteed by the First Amendment to the 
Constitution. [Complaint at 21.] 

Plaintiffs ask the court to declare the provisions of 2 U.S.C. 
§ 441b complained of be declared unconstitutional. They also seek 
an injunction against the defendants prohibiting them from enforc- 
ing any of the complained of provisions and regulations promulgat- 
ed thereunder. 

On September 25, 1978, defendants moved to dismiss. On October 
20, 1978, Judge Oberdorfer granted defendants' motion and dis- 
missed the action. 

On October 31, 1978, plaintiffs filed a notice of appeal. The 
appeal was docketed in the U.S. Court of Appeals for the District 
of Columbia Circuit on November 6, 1978. The Court of Appeals 
remanded the record to the District Court on November 8, 1978, to 
permit the District Court to file its memorandum on the dis- 
missal. 

On November 8, 1978, District Judge Oberdorfer filed the 
memorandum explaining his dismissal order. 

In his opinion Judge Oberdorfer concluded that the plaintiffs 
could not invoke the statutory provision for judicial review pro- 
vided in 2 U.S.C. § 437(h) (a provision of the FECA) and even if 
they could qualify under that provision their allegations pre- 
sented no case or controversy sufficiently ripe to invoke the de- 
claratory powers of the Federal Court. As to the assertion of 
standing pursuant to the statute, Judge Oberdorfer declared: 

Plaintiffs claim that they are entitled to invoke the 
Court's jurisdiction under a unique provision of the Act 
which authorizes particular persons to sue "for declara- 
tory judgment as may be appropriate to construe the 
constitutionality of any provision of this act." 2 U.S.C. 
§ 437(h)a. Section 437(h)a had the purpose and effect of 
expediting judicial review of questions raised in Congress 
about the constitutionality of particular provisions of the 
Act so that these questions could be authoritatively re- 
solved before the Presidential Election of 1976. See Re- 
marks of Senator James Buckley, 119 Cong. Rec. §5707 
(daily ed. April 10, 1974); Buckley v. Valeo, 424 U.S. 1, 11- 
12 (1976). Plaintiffs do not suggest that § 441(h) here at 
issue was among the provisions whose constitutionality 
was questioned in Congress. In any event, and crucial 
here (access to court pursuant to § 437(h)a was by its 
terms limited to "the Commission, the national commit- 
tee of any political party, or any individual eligible to 



139 

vote in any election for the office of President of the 
United States." 

Neither the corporate plaintiffs, nor the political action 
committees are in the category of entities or individuals 
entitled to invoke the Court's jurisdiction under 
§ 437(h)a. The decision to dismiss their complaint seems 
therefore to be a fortiori. 

A closer question is raised with respect to the executive 
plaintiffs and the hourly employee plaintiff. The com- 
plaint alleges that they are eligible voters; the complaint 
puts at issue, however, not their rights as voters, but 
rather the constitutionality of the Act's provisions relat- 
ing to communications between a corporation and its 
employees about voluntary contributions. Thus, as de- 
fendants persuasively contend, the individual plaintiffs 
do not sue in their individual capacities to protect their 
individual rights to vote or even to make contributions. 
They sue to vindicate a claimed right of their corporate 
employer to influence its employees (including one of the 
plaintiffs) to make voluntary political contributions. 
While the question is not free from doubt, the Court has 
concluded that this kind of derivative right was not the 
constitutional right of "an individual eligible to vote" 
which Congress considered "appropriate" for vindication 
in a special declaratory judgment action under § 437(h), 
particularly where, under the statutory scheme there is 
an alternative process for resolution of the substantive 
issue in the context of a particular transaction, infra. 
{Martin Tractor Co., et. al v. Federal Election Commission 
(78-1259) D.D.C. at 3-4. This report at 287-288.) 

Judge Oberdorfer next noted that, even if the court assumed 
that the plaintiffs could qualify pursuant to the statute, he would 
still be compelled to dismiss the action. The judge cited Abbot 
Laboratories v. Gardner, 387 U.S. 136(1967) as establishing a two- 
pronged test for determining whether a Goverment agency's 
action created a "ripe" controversy sufficient to invoke the 
court's declaratory or injunctive powers. According to the judge, 
the elements of the test enunciated in Abbot are: 

1. Is the issue fit for judicial decision? 

2. What hardship to the parties is there in withholding judicial 
consideration? 

In summarizing his conclusion on these questions Judge Ober- 
dorfer declared: 

[T]he Court concludes, first, that the issue framed by 
plaintiffs is not readily amenable to judicial review, being 
uncertain as to both conduct and legal consequences and, 
secondly, that the harm in delaying review is minimal 
since plaintiffs have yet to take the relatively costless 
steps which would permit an initial determination of the 
legality of their intended conduct. (Slip Opinion at 8, this 
report at 291.) 

Status. — The record was returned to the Court of Appeals on 
November 14, 1978. The action is pending in the United States 
Court of Appeals for the District of Columbia Circuit. 

The memorandum of the District Court is printed in the "Deci- 
sions" section of this report at 285. 



VI. Disputed Elections 

Moreau v. Tonry 

No. 76-3290 (E.D. La.) 

Brief. — On October 2, 1976, a runoff primary was held for the 
Democratic nomination for the U.S. House of Representatives for 
the First Congressional District of Louisiana. The apparent winner 
of the runoff, Richard Tonry, then defeated the Republican candi- 
date in the general election on November 2, 1976, and was seated 
as a Member of the 95th Congress on January 4, 1977. 

From the runoff primary election three civil actions have arisen. 

In the first action, James Moreau, the other candidate in the 
runoff primary, brought suit in the State District Court pursuant 
to the Louisiana election statute (La. R.S. 18:364). [Moreau v. Tonry, 
No. 28-837 (25th Jud. Dist. Ct. of Parish of St. Bernard, La. Oct. 15, 
1976).] Mr. Moreau asserted that but for fraud and irregularities 
he, rather than Mr. Tonry, would have been the nominee and in 
fact, by reason of the legal votes cast in the race, he was the 
nominee. The State District Court found no basis for voiding the 
election, but the Louisiana Court of Appeals, sitting en banc, decid- 
ed to set aside the election. [Moreau v. Tonry, No. 8222 (4th Cir. of 
La. Oct. 21, 1976).] The State Court of Appeals decision was subse- 
quently overturned by the Louisiana Supreme Court which rein- 
stated the judgment of the District Court dismissing the election 
contest. [Moreau v. Tonry, No. 58791 (Supreme Court of Louisiana 
Oct. 25, 1976).] 

The Louisiana Supreme Court's decision was appealed to the U.S. 
Supreme Court which, on March 21, 1977, dismissed the appeal for 
want of a properly presented Federal question. [Moreau v. Tonry, 
45 U.S.L.W. 3646 (U.S. Mar. 21, 1977).] 

As the election contest was progressing through the Louisiana 
State courts, Mr. Moreau filed suit as an elector in the U.S. Dis- 
trict Court for the Eastern District of Louisiana for deprivation of 
rights under the Fourteenth Amendment to the Constitution and 
the Civil Rights Act of 1965. [Moreau v. Tonry No. 76-3087 (E.D. La. 
Oct. 7, 1976).] 

Mr. Moreau sought to enjoin the Louisiana Secretary of State 
from recognizing Mr. Tonry as the Democratic nominee and from 
conducting a general election on November 2, 1976, for the 1st 
District House seat. The suit was dismissed "for failure to state a 
claim upon which relief can be granted and/or for lack of jurisdic- 
tion". [Appellants' Brief at 3, Moreau v. Tonry, No. 74-4230 (5th 
Cir.).] No appeal was taken. 

On October 26, 1976, Mr. Moreau and a group of his supporters 
filed, in the Federal District Court for the Eastern District of 
Louisiana, an action for deprivation of rights under Article I of the 
United States Constitution and the Fourteenth Amendment of the 

(141) 



142 

Constitution. [Moreau v. Tonry, No. 76-3290 (E.D. La. Oct. 26, 
1976).] 

The defendants, including Mr. Tonry, filed motions to dismiss 
asserting, inter alia, "that the action was either res judicata or 
collaterally estopped because of the dismissal of plaintiffs case[s] in 
State and Federal court[s]." [Id. at 4.] The District Court refused to 
dismiss, holding the doctrine of res judicata was not applicable and 
that the action was collaterally estopped as to only part of the 
asserted irregularities. The Defendants appealed. 

As articulated by the appellants the issues presented for review 
by the 5th Circuit Court of Appeals were: 

1. Whether the District Court has jurisdiction over elec- 
tion contest suits concerning elections for United States 
Representatives to Congress brought by electors when a 
State contest remedy is provided and finally adjudicated; 

2. Whether the action is res judicata or is collaterally 
estopped because of the disposition of the issues in Louisi- 
ana State courts; and the disposition of plaintiffs previous 
action in Federal court; 

3. Whether laches bars the assertion of a Federal cause 
of action to annul primary election brought so near the 
date of the general election that neither a new election or 
appointment of a nominee under State law is an available 
remedy; 

4. Whether mootness bars this action, in that after the 
election the House of Representatives has the power to 
decide whom it will seat. [Id. at 1.] 

Oral argument was held in the action before the 5th Circuit 
Court of Appeals on January 26, 1977. 

On April 13, 1977, the 25th Judicial District Court of the Parish 
of St. Bernard reopened its case. On April 21, 1977, Judge Melvin 
A. Shortess vacated his judgment of October 15, 1976. Finding that 
"but for" the fraud perpetrated upon the court by the witnesses 
who testified the action would not have been dismissed, Judge 
Shortess concluded that his original decision had to be vacated. 
Because of the fraud which he found, he also concluded that: 

As a consequence, Tonry rather than Moreau became 
the Democratic nominee, and Tonry now sits in Congress. 
The language of Article 1, Section 5, of the U.S. Constitu- 
tion makes Congress the sole judge of the qualification of 
its members. Congress must now decide. Hopefully, it will 
bear in mind that this court, for all of the reasons set 
forth above, does now annul and set aside its prior judg- 
ment of October 15, 1976. [Moreau v. Tonry, No. 29-542 
(25th Jud. Dist. Ct. of Parish of St. Bernard, La. April 21, 
1977); Slip Opinion at 17.] 

On May 4, 1977, Mr. Tonry resigned his seat in the U.S. House of 
Representatives. 

A special panel of the Committee on House Administration of 
the U.S. House of Representatives had also been investigating the 
alleged vote fraud. With Mr. Tonry's resignation, the panel 



143 

dropped its inquiry, although it did issue a report in the form of a 
committee print on June 2, 1977. 

On June 9, 1977, the U.S. Court of Appeals for the 5th Circuit 
announced its decision per curiam. Noting that Mr. Tonry's resig- 
nation mooted the appellee's chief requests to set aside the results 
of the Democratic primary, the court concluded that nothing re- 
mained of the action for which the court could grant the interlocu- 
tory appeal. The court thus vacated the decision of the District 
Court allowing the appeal and remanded the action to the District 
Court for consideration of the mootness of the entire action or for 
such further proceedings as the District Court might require. 

On December 8, 1978, Mr. Moreau and a group of his supporters 
filed an amended complaint and a second amended complaint 
with the U.S. District Court. 

The amended complaint prayed for a declaratory judgment de- 
claring the election of October 2, 1976, and November 2, 1976, to 
be null, void and of no effect and to order a new Democratic 
Primary Election to be held between James A. Moreau, and de- 
fendant, Richard A. Tonry, for the purpose of selecting the Demo- 
cratic nominee to run for the office of U.S. Representative from 
the First Congressional District, of Louisiana. It also prayed for 
the holding of another general election. 

The second amended complaint prayed for judgment against the 
defendants for damages in the sum of $5 million for deprivation 
of their civil right to vote and to have their vote meaningfully and 
accurately counted, in the election held on October 2, 1976, plus 
$1.5 million, as attorney's fees. 

Status.— The Federal action (76-3290) is pending before the U.S. 
District Court for the Eastern District of Louisiana. 

The complete text of the April 21, 1977 decision of the 25th 
Judicial District Court for the Parish of St. Bernard is printed in 
the * 'Decisions" section of the Court Proceedings and Actions of 
Vital Interest to the Congress, Part 2, August 15, 1977. 

The complete text of the per curiam opinion of the Court of 
Appeals is printed in the "Decisions" section of Court Proceedings 
and Actions of Vital Interest to the Congress, Part 2, August 15, 
1977. 

The complete texts of the opinions of the Supreme Court of 
Louisiana, the Louisiana 4th Circuit of Appeals, and the 25th Judi- 
cial District Court for the Parish of St. Bernard, are printed in the 
"Decisions" section of the report of Court Proceedings and Actions 
of Vital Interest to the Congress, Part 1, April 15, 1977. 



VII. Other Actions Involving Members in a Representative 

Capacity 

Dellums v. Powell 

Nos. 75-1974, 75-1975, 75-2117, 76-1418 and 76-1419 (D.C. Cir.) 
and No. 2271-71 (D.D.C.) 

and, 

Powell v. Dellums 

No. 77-955 (U.S. Supreme Court) 
and, 

Wilson v. Dellums 

No. 77-1129 (U.S. Supreme Court) 

Brief. — This action for declaratory and injunctive relief and for 
damages, brought in the U.S. District Court for the District of 
Columbia on November 11, 1971, arises out of the arrest of some 
1,200 persons assembled on the steps of the House of Representa- 
tives at the Capitol Building on May 5, 1971. 

Representative Ronald V. Dellums, a plaintiff, brought the action 
as an individual for violation of his constitutional rights and for 
interference with the discharge of his constitutional duties as a 
Member of Congress. The other plaintiffs, all arrested demonstra- 
tors, sued individually and as members of their class, seeking dam- 
ages, expungement of arrest records and destruction of illegally 
obtained fingerprints and photographs. 

Defendants named in the complaint included the Chief of the 
Capitol Police James M. Powell, the Chief of the Metropolitan 
Police Department, the District of Columbia, then-U.S. Attorney 
General John Mitchell, and then-Deputy Attorney General Richard 
Kleindienst. 

Numerous pretrial motions were filed on behalf of the parties to 
the action resulting in a number of rulings by U.S. District Judge 
William B. Bryant, in which he denied plaintiffs' motion for a 
preliminary injunction, granted plaintiffs' motion to maintain the 
action as a class action and required defendants to supply to plain- 
tiffs the names and addresses of the persons arrested on the Cap- 
itol steps on May 5, 1971, in order that notices of the class action 
could be sent to them, and permitted extensive discovery through 
the use of interrogatories. 

On December 2, 1974, defendant Mitchell was granted a sever- 
ance because of his involvement with other judicial proceedings. 

On January 16, 1975, a $12 million judgment against the defend- 
ants (other than Mr. Mitchell and Mr. Kleindienst) for false arrest 
and infringement of basic rights under the First, Fourth and 
Eighth Amendments to the Constitution, was awarded to the 1,200 
antiwar demonstrators. Representative Dellums was awarded 

(145) 



146 

$7,500 for deprivation of his rights of free speech under the First 
Amendment. [Dellums v. Powell, Civil Action No. 2271-71 (D.D.C. 
1975).] 

Appeals were filed by the defendants on October 1, 1975 (Nos. 
75-1974 and 75-1975). On October 22, 1975, plaintiffs filed an 
appeal (No. 75-2117) from an October 20, 1975, final judgment by 
the District Court dismissing defendant Kleindienst as a party to 
the action. 

On March 4, 1976, the District Court reinstated into the class 
three plaintiffs who had been dismissed from the suit as original 
plaintiffs. Defendants immediately appealed this decision (Nos. 76- 
1418 and 76-1419). 

All five cases were consolidated for purposes of appeal on June 3, 
1976, and oral argument was heard by the Appeals Court on Janu- 
ary 14, 1977. 

Plaintiffs, meanwhile, had begun to proceed with their action 
against Mr. Mitchell. Before the severance of the trial on Decem- 
ber 2, 1974, a subpoena duces tecum had been served upon Philip 
Buchen, counsel to then-President Ford, demanding production of 
"all tapes and transcripts of White House conversations during the 
period of April 16 through May 10, 1971, at which 'May Day' 
demonstrations * * * were discussed." The subpoena was served in 
October 1974. Mr. Buchen filed a motion to quash the subpoena, 
stating that although he had actual physical control over the tapes, 
he was not their custodian. Alternatively he argued that the mate- 
rial sought was not relevant to the case. The District Court denied 
his motion on November 14, 1974, and ordered production of the 
material. Counsel for former President Nixon then filed a motion 
for a stay of the November 14 order and also filed a motion to 
quash the subpoena. The motion for a stay and Mr. Mitchell's 
motion for severance were both granted on December 2, 1974. 

No action was taken on the subpoena until the plaintiffs began 
making preparations to proceed with their case against Mr. Mitch- 
ell. On February 17, 1976, Plaintiffs filed a memorandum in opposi- 
tion to Mr. Nixon's motion to quash. The District Court denied Mr. 
Nixon's motion to quash on March 10, 1976, lifted its stay order of 
December 2, 1974, and ordered Mr. Buchen to advise the court of 
the time necessary for compliance with the subpoena. Mr. Nixon 
immediately appealed, and the Court of Appeals stayed the District 
Court's order pending appeal. 

The Appeals Court Issued its opinion on the Nixon appeal on 
January 28, 1977. The court rejected "Mr. Nixon's contention that 
a formal claim of privilege based on the generalized interest of 
Presidential confidentiality, without more, works an absolute bar 
to discovery of Presidential conversations in civil litigation, regard- 
less of the relevancy or necessity of the information sought." [Del- 
lums v. Powell, No. 76-1336 (D.C. Cir. Jan. 28, 1977); Slip Opinion 
at 61.] The court concluded that the privilege is only presumptive, 
not absolute, requiring a balancing approach weighing the interests 
to be protected against the necessity for production. The Appeals 
Court affirmed the District Court's finding that plaintiffs had made 
a showing sufficient to overcome the claim of privilege. However, 
the Appeals Court ruled that the District Court erred in failing to 
provide adequate protections for Mr. Nixon's personal privacy in- 



147 

terests in the subpoenaed materials, and it ordered the District 
Court to take certain steps to insure that privacy. The court or- 
dered the District Court's memorandum order remanded for modifi- 
cation and ruled that the subpoena may thereafter issue. 

Judge MacKinnon, in a separate opinion concurring in part and 
dissenting in part, said that Presidential privilege should protect 
former Presidents to the same extent it protects the incumbent 
because the privilege belongs to the office. 

On March 11, 1977, Mr. Nixon filed a petition for rehearing en 
banc. On April 14, 1977, the petition for rehearing was denied. Mr. 
Nixon then moved for a stay of mandate, which the Court of 
Appeals granted until at least 30 days after a decision by the U.S. 
Supreme Court in Nixon v. Administrator of General Services. On 
June 28, 1977, the U.S. Supreme Court handed down its decision in 
Nixon v. Administrator of General Services. On July 13, 1977, Mr. 
Nixon filed a petition for a writ of certiorari with the U.S. Supreme 
Court. [Nixon v. Dellums, No. 77-81 (U.S. Supreme Court).] 

The Court of Appeals issued its opinions in the consolidated cases 
on August 4, 1977. For its own convenience, the court wrote sepa- 
rate opinions in each case. 

In the appeals of James M. Powell, the Chief of the United 
States Capitol Police (No. 75-1974), and the District of Columbia 
and its chief of police at that time, Jerry V. Wilson (No. 74-1975), 
the court (1) affirmed the jury's verdict in all respects on its find- 
ings that appellants were liable for false arrest and false imprison- 
ment and that the lower court had not incorrectly denied a direct- 
ed verdict or a new trial to the defendants on those counts, (2) 
vacated the judgment of liability and damages for cruel and unusal 
punishment as being duplicative and contrary to law, since the 
jury had already considered these matters in awarding damages for 
false arrest and false imprisonment, (3) affirmed liability as to 
violation of First Amendment rights, but ordered a new trial as to 
damages, finding that the $7,500 awarded to each member of the 
class was, in these circumstances, ' 'totally out of proportion to any 
harm that has been suffered * * * " [Dellums v. Powell, No. 75- 
1974 (D.C. Cir. August 4, 1977); Slip Opinion at 53] and (4) vacated 
the judgment on liability for malicious prosecution and ordered a 
new trial on this charge as to Mr. Powell only. 

Regarding the awarding of $7,500 to Representative Dellums for 
deprivation of his First Amendment rights, the court agreed with 
Representative Dellums that he had suffered a First Amendment 
wrong when his listeners were arrested. The court concluded that 
damages could be awarded for loss of these rights, but just as it 
concluded that the damages awarded to the class for loss of its 
First Amendment rights were excessive, it also found the $7,500 
awarded to Representative Dellums to be excessive. It therefore 
affirmed the jury's findings that the defendants were liable to 
Representative Dellums for his loss of First Amendment rights, but 
ordered a new trial as to damages. 

In the appeals of the orders reinstating into the class the three 
plaintiffs who had been dismissed from the suit as original plain- 
tiffs (Nos. 76-1418 and 76-1419), the Appeals Court affirmed the 
decision of the trial judge reinstating two of the plaintiffs, but 
ruled that the third should not have been reinstated. 



148 

In all of these August 4, 1977 decisions of the Court of Appeals 
Judge Edward A. Tamm dissented. Judge Tamm was of the opinion 
that had the trial court taken proper judicial notice of the events 
preceding the arrests, the actions of the police would have been 
held immune from civil liability as a matter of law. 

The court also unanimously affirmed the District Court's dismiss- 
al of Mr. Kleindienst from the suit. 

On August 11, 1977, appellants in the consolidated cases filed a 
motion for an extension of time to file a petition for rehearing. 

On September 1, 1977, a per curiam order was filed in the Court 
of Appeals granting the motions of the District of Columbia appel- 
lants in numbers 75-1975 and 76-1419 to file petitions for rehear- 
ing and extending to September 19, 1977, the time within which 
the District of Columbia appellants might file petitions for rehear- 
ing and/or suggestions for rehearing en banc in numbers 75-1975 
and 76-1419. 

On October 3, 1977, Mr. Nixon's petition for writ of certiorari on 
his appeal was denied by the United States Supreme Court. 

On October 19, 1977, the District of Columbia appellants filed a 
petition for rehearing en banc in the Court of Appeals. 

On October 21, 1977, the U.S. Supreme Court extended the time 
for defendant Powell to file a petition for writ of certiorari to 
January 1, 1978. 

On November 14, 1977, a per curiam order was filed in the Court 
of Appeals denying the petitions for rehearing filed by both appel- 
lees Ronald V. Dellums et al. and appellants District of Columbia, 
et al.; on the same day, a per curiam order en banc was also filed in 
the Court of Appeals denying appellants' suggestion for a rehear- 
ing en banc. 

Mr. Powell filed a petition for writ of certiorari with the U.S. 
Supreme Court on January 3, 1978. 

Mr. Wilson filed a petition for writ of certiorari with the U.S. 
Supreme Court on February 10, 1978. 

Respondents moved to recuse Mr. Justice Blackmun in both 77- 
955 and 77-1129 on May 9, 1978. As the basis for the motion, the 
respondents cite statements allegedly made by Mr. Justice Black- 
mun at a Legal Aid Society ceremony in New York City on March 
8, 1976. According to respondents' motion, Mr. Justice Blackmun 
publicly expressed the view that the May Day demonstrators were 
"trying to take over the government" and expressly stated his 
approval of the police handling of the demonstrations. 

On June 13, 1978, respondents moved to disqualify Mr. Justice 
Rehnquist. 

The motions of respondents to recuse Mr. Justice Blackmun and 
Mr. Justice Rehnquist and the petitions for writ of certiorari were 
denied on July 3, 1978. 

Mr. Powell and Mr. Wilson filed petitions for rehearing on July 
28, 1978. 

On September 25, 1978, Mr. Wilson and the District of Columbia 
filed a motion in the District Court for a protective order or, in 
the alternative, for a stay of execution and related proceedings. 

Mr. Powell filed a motion in the District Court seeking, alterna- 
tively, a protective order, partial relief from judgment, or a stay 
of execution on September 5, 1978. 



149 

The petitions for rehearing were denied by the Supreme Court 
on October 2, 1978. 

On November 8, 1978, District Judge Bryant issued an order 
accompanied by a memorandum opinion detailing the procedure 
for the transcribing of those Nixon tapes dealing with the May 
Day demonstration and their transmittal of those transcripts to 
the court and subsequently to counsel for the plaintiffs. 

On November 21, plaintiffs moved for a protective order. 

On November 24, 1978, Mr. Nixon moved for a clarification of 
the District Court's order of November 5, 1978. 

Status. — New trials are pending in the District Court as to dam- 
ages and as to the malicious prosecution complaint against defend- 
ant Powell. 

The complete text of the opinions of the Court of Appeals are 
printed in the "Decisions" section of Court Proceedings and Actions 
of Vital Interest to the Congress, Part 2, August 15, 1977, as follows: 
No. 75-1974 [Mr. Wilson] at 711; No. 75-1975 [Mr. Powell and the 
District of Columbia] at 815; and Nos. 76-1418 and 76-1419 [rein- 
stated plaintiffs] at 845. 

The complete text of the opinion of the Court of Appeals in 
Dellums v. Powell, No. 77-1336 [Nixon appeal] is printed in the 
"Decisions" section of the report of Court Proceedings and Actions 
of Vital Interest to the Congress, Part 1, April 15, 1977. 

The complete text of the memorandum opinion and accompany- 
ing order of the District Court of November 8, 1978, is printed in 
the "Decisions," section of this report at 293. 

Sportservice Corp. v. Steiger 

Civil Action No. C286651 (Superior Court, State of Arizona for 
Maricopa County) 

Brief — On January 25, 1974, Sportservice Corporation and its 
subsidiaries, which are engaged in various businesses including 
horse racing, dog racing, and businesses identified with those activ- 
ities, as well as the operation of food and beverage concessions, 
filed suit against then-Representative Sam Steiger, one of his 
former aides, and others alleging a conspiracy to damage plaintiffs 
business activities for defendant's personal benefit. The complaint 
asks $1 million in damages. 

Among other charges, Sportservice alleged that statements made 
by Representative Steiger and dissemination by him of material to 
certain publications were part of the conspiracy. 

Representative Steiger, in his answer, denied any conspiracy, 
responded that all the statements he had made and the material 
he had furnished were true, and claimed that all acts done or 
performed were in his capacity as a Member of Congress in fur- 
therance of his official duties. As such, Representative Steiger 
claimed that they were protected by the "doctrines of legislative 
privilege and legislative immunity." As for the statements made by 
him and alleged by Sportservice to be defamatory, Representative 
Steiger asserted that his statements were true, made in good faith 
in the belief that they were true, and in any event, privileged as 
statements made in the public interest involving matters of public 
concern. 



150 

Representative Steiger's answer to Sportservice's complaint con- 
tained a counter claim alleging that Sportservice was engaging in 
an effort to defame him and to damage his reputation individually 
and as a Member of Congress. Representative Steiger's counter- 
claim seeks $2 million in damages. 

During the course of the proceedings, the trial court ordered 
Representative Steiger's former aide to answer questions put to 
him in a discovery deposition. Representative Steiger asserted 
Speech or Debate clause immunity to prevent the aide from re- 
sponding. Sportservice then sought a court order to require the 
aide to answer. Such an order was issued by the trial court, but 
Representative Steiger appealed. The matter came before the Ari- 
zona Supreme Court [Steiger v. The Superior Court of the State of 
Arizona for Maricopa County, 536 P.2d 689 (Ariz. 1975)] and was 
decided on June 4, 1975. 

Before the State Supreme Court, Representative Steiger again 
asserted that the actions complained of by Sportservice were car- 
ried out in his official capacity and that Speech or Debate clause 
immunity was a bar to inquiry into his legislative activities. 

The court held that while activities that are clearly related to 
the legislative process are immune from inquiry, even when gener- 
al criminal statutes might otherwise apply, Speech or Debate 
clause immunity does not shield everything related to a Congress- 
man's office. Only acts done in the process of enacting legislation 
are protected. While Representative Steiger had asserted that the 
acts which were to have been the subject matter of the deposition 
were part of an investigation he was conducting, the court noted 
that there was no showing that the investigation was related to 
any pending Congressional inquiry or legislation. The court also 
noted that more than 1 year after the acts occurred, Representa- 
tive Steiger introduced a bill to provide criminal penalties for 
fixing certain horse or dog races. While the court said it was 
arguable that the impetus for the legislative proposal may have 
resulted from the investigation and as such was related to the 
legislative process, it refused to accept that such a connection was 
sufficient to bring the acts within the protection of Speech or 
Debate clause immunity. 

Status. — A trial on the merits is pending in the Arizona State 
court system. 

The decision of the Arizona Supreme Court in Steiger v. The 
Superior Court of the State of Arizona for Maricopa County is 
printed in the "Decisions" section of the report of Court Proceed- 
ings and Actions of Vital Interest to the Congress, August 15, 1975. 

Reuss v. B a lies 

No. 78-579 (U.S. Supreme Court) 

Brief — Representative Henry Reuss brought this action (in a 
complaint filed on June 21, 1976, and in an amended complaint 
filed on July 7, 1976) against the individual members of the Feder- 
al Open Market Committee (hereinafter "FOMC") who are not 
members of the Board of Governors of the Federal Reserve System, 
and against the 12 Federal Reserve Banks. 



151 

The individual defendants are all presidents or first vice presi- 
dents of the Federal Reserve Banks, each of whom was appointed 
as an officer by his Bank's board of directors, with approval of the 
Board of Governors of the Federal Reserve System. Under § 12A(a) 
of the Federal Reserve Act (12 U.S.C. § 326(a)), the FOMC consists 
of the seven members of the Board of Governors of the Federal 
Reserve System, plus five others (and their alternates) selected by 
the boards of directors of the Federal Reserve Banks, who must be 
either presidents or first vice presidents of said Banks. Each board 
of directors of a Bank consists of nine members, three of whom are 
chosen by the Board of Governors of the Federal Reserve System 
and six of whom are chosen by the commercial banks who are the 
stockholders of said Bank. 

Representative Reuss states that he is "a Member of the House 
of Representatives and is Chairman of the Committee on Banking, 
Currency and Housing, which pursuant to Rule X.l(d) of the Rules 
of the House of Representatives, has jurisdiction of legislative mat- 
ters relating, inter alia, to banks and banking, Federal monetary 
policy, money and credit, valuation and revaluation of the dollar, 
and international finance. The plaintiff is also Chairman of the 
Subcommittee on International Economics of the Joint Economic 
Committee established by the Employment Act of 1946 (15 U.S.C. 
Chapter 21)." He also states that he is the owner of certain market- 
able bonds whose aggregate cost, aggregate marketable value, and 
aggregate face value are in excess of $20,000. The complaint states 
that the FOMC makes decisions to buy or sell United States Gov- 
ernment securities and the currencies of foreign governments, 
which decisions are then carried out by the Federal Reserve Banks, 
and that these purchases or sales have a substantial effect on the 
value of foreign currencies relative to the currency of the United 
States, and upon domestic bank reserves, bank credit, money 
supply, interest rates, overall credit conditions, economic activity, 
jobs, and prices. It states that the five defendant members of the 
FOMC have the same vote as the seven who are members of the 
Board of Governors of the Federal Reserve System, and that they 
exercise substantial power in the formulation of the decisions on 
open market policy. 

Representative Reuss alleges that the method of selection of the 
five defendant members and their alternates violates Article II, 
Section 2 (the Appointments Clause) of the Constitution because 
such members have not been appointed officers of the United 
States in accordance with the procedures outlined therein. He al- 
leges that by voting on the FOMC they create for themselves de 
facto offices of the United States, thereby diminishing or usurping 
his legislative functions, both as a Member of the House and as 
Chairman of its Committee on Banking, Currency and Housing. He 
alleges he is affected in participating in the exercise of the follow- 
ing powers of Congress: 

(a) Regulating the value of money and foreign exchange 
under Article I, Section 8, clause 5 of the Constitution. 

(b) Providing for offices under the United States not 
otherwise provided for by the Constitution; and establish- 
ing the qualifications therefor, prescribing the duties and 



152 

compensation thereof, and providing for the terms of office 
and grounds for removal. 

(c) Regulating interstate and foreign commerce. 

(d) Borrowing money on the credit of the United States. 

(e) Participating in the process of selection of officers of 
the United States as provided in Article II, Section 2, of 
the Constitution through negotiation with representatives 
of the Senate on issues and nominees in the context of the 
overall functioning of the legislative process in the Con- 
gress of the United States. 

He also alleges that the individual defendants can substantially 
and adversely affect the value of his property, thereby depriving 
him of property without due process, by increasing or decreasing 
interest rates on Government securities and by affecting the avail- 
ability of money. The complaint asserts that in carrying out the 
orders of the FOMC, which are made by the allegedly unconstitu- 
tional participation of the defendant individuals, the defendant 
banks regulate the value of money and of foreign currency, thereby 
interfering with plaintiffs legislative functions under Article I, 
Section 8, clause 5, and that these actions may also deprive him of 
property to the extent of more than $10,000 without due process of 
law. 

The suit asks that the defendant individuals and their successors 
be permanently enjoined from serving as members or alternate 
members of the FOMC, that defendant banks be permanently en- 
joined from complying with any FOMC decisions made while any of 
these individuals sit as members of it, and that the court render a 
judgment declaring void for repugnance to Article II, Section 2, 
clause 2 of the Constitution, such parts of section 12A(a) of the 
Federal Reserve Act as provide for the selection of members and 
alternates of the FOMC by the boards of directors of the Federal 
Reserve Banks. 

Also, on June 21, 1976, Representative Reuss made application 
for a three-judge court to hear the case pursuant to 28 U.S.C. 
§ 2882. 

Defendants filed an opposition to the convening of a three-judge 
court and a motion to dismiss on July 30, 1976. The motion to 
dismiss asserted that Representative Reuss lacked standing to sue, 
both as a Member of the House of Representatives and as an 
individual owner of securities. 

Representative Reuss filed a motion on October 1 to amend his 
complaint to join the FOMC as a party defendant. 

Oral argument on all motions was held on November 30, 1976. 

In a memorandum opinion issued December 22, 1976, U.S. Dis- 
trict Judge Barrington D. Parker granted defendants' motion to 
dismiss the complaint. The court held that Representative Reuss 
lacked standing to bring the suit either as a Congressman or as a 
bondholder. 

Each of Representative Reuss' allegations of injury was consid- 
ered by the court. As a Congressman, Representative Reuss alleged 
injury in that the Reserve Bank's representatives were not prop- 
erly designated as "inferior officers" and they therefore escaped 
the reach of the impeachment power. The court stated that since 



153 

there was no specific allegation of wrongdoing, the claim was 
"remote, conjectural and insufficient." [Reuss v. Balles, Civil Action 
No. 76-1142 (D.D.C. 1976); Slip Opinion at 12.] The court found that 
his argument that because these Reserve Bank members are not 
inferior officers of the United States that any delegation of Con- 
gressional authority to them is improper and thereby injures him 
was also without merit. The majority of the FOMC are clearly 
officers of the United States, said the court, and the other members 
had to be approved by the Board of Governors of the Federal 
Reserve, so it could not be argued that the FOMC was a private 
agency and the delegation of authority was improper. The court 
stated that Representative Reuss had also failed to show injury in 
fact in his assertion that he was harmed in his power to affect the 
confirmation process through negotiation with Members of the 
Senate, since it is the Senate, and not the House of Representa- 
tives, which confirms Presidential appointments made pursuant to 
the Appointments Clause. 

Finally, the court said service on the FOMC by the Reserve Bank 
members in no way affected Congressman Reuss' ability to perform 
his legislative duties because he could introduce legislation at any 
time to overrule the policies or the regulations of the FOMC. As to 
plaintiffs standing as a bondholder, the court stated that "[a]t best 
the plaintiffs contentions are generalized concerns of the public, 
and therefore the alleged injury is abstract and speculative." [Slip 
Opinion at 14-15.] 

Representative Reuss filed a notice of appeal on December 23, 
1976, and on January 7, 1977, he filed a motion to expedite the 
appeal. 

On March 11, 1977, the Court of Appeals denied the motion to 
expedite the appeal. 

The appeal was argued on December 5, 1977. 

The Court of Appeals issued its opinion on July 7, 1978, affirm- 
ing the District Court and holding that Congressman Reuss lacked 
standing to sue, as either a legislator or a bondholder. The opinion 
noted that on appeal, Representative Reuss had pressed two the- 
ories of legislator standing and rejected both, stating that neither 
theory presented a situation where Representative Reuss' vote 
would be derogated, as had been the case in Kennedy v. Sampson, 
511 F.2d 430 (D.C. Cir. 1974), or a situation sufficiently analogous to 
warrant a determination of standing to sue. 

The opinion filed for the court by Circuit Judge Tamm first 
considered Congressman Reuss' argument that he was injured as a 
Member of Congress, so long as all members of the FOMC are not 
presidentially appointed, since the FOMC is thus essentially a pri- 
vate group to which legislative functions have been improperly 
delegated. The Court of Appeals concluded that the District Court 
had erred in making a determination that there was no improper 
delegation. Rather, the appeals panel noted, the District Court 
should have assumed that the FOMC is a private group exercising 
improperly delegated powers and then it should have asked wheth- 
er Representative Reuss was injured thereby. The Court of Appeals 
held that no interest of Congressman Reuss was injured, explaining 
its conclusion in the following fashion: 



154 

The interest sought to be protected by the appellant 
under this theory is his role in the formulation and regula- 
tion of general monetary policy. The defect in his theory, 
however, is that even if we were to declare, in effect, that 
all members of the FOMC had to be presidential appoin- 
tees, the same responsibilities currently delegated to the 
FOMC would remain so delegated. The fact that appel- 
lant's role vis-a-vis monetary policy would in no way be 
enhanced by such a declaration indicates that his legisla- 
tive powers, including relevant votes either in committee 
or on the floor, are not currently adversely affected in any 
respect; there is, therefore, no injury in fact that would be 
redressed by a favorable decision. Thus, we are in accord 
with the district court's determination of, but not all its 
reasoning for, a lack of standing under this theory. [Slip 
Opinion at 12-13.] 

The opinion next rejected Congressman Reuss' second legislator 
standing theory, that the method of selecting the Reserve Banks' 
representative of the FOMC renders them "jurisdictionally 
immune" to the impeachment power of the House of Representa- 
tives, thus diminishing his power to initiate impeachment proceed- 
ings under Article I, Section 2, of the Constitution. Even if the 
court were to declare that Presidential appointment were required, 
Circuit Judge Tamm wrote, Congressman Reuss' interest relative 
to the impeachment process would not be changed in any way, 
since there is no indication that he cannot presently introduce a 
bill of impeachment. On this point the court declared: 

If he were to introduce a bill of impeachment, the ques- 
tion of whether de facto civil officers of the United States 
are "jurisdictionally immune to the impeachment process" 
would be sharply presented. We believe that there is par- 
ticular benefit in this question arising first in the Con- 
gress, the branch entrusted by the Constitution with re- 
sponsibility for exercise of the impeachment power. We 
venture no opinion on whether the House of Representa- 
tives, or the Senate, would reject such a bill on jurisdic- 
tional grounds, or on what course a court might take if 
confronted with such a rejection as a ground for standing. 
[Slip Opinion at 15.] 

Therefore, the court concluded in requesting a declaratory judg- 
ment, Representative Reuss is actually seeking an advisory opinion 
in violation of Article III. Furthermore, the opinion noted, by re- 
jecting Congressman Reuss' standing, he is not left without a 
means of remedying the allegedly unconstitutional composition of 
the FOMC, in that he may introduce and seek to have enacted a 
bill requiring all FOMC members to be Presidential appointees. 

The court then turned to Representative Reuss' allegation of 
standing as a bondholder. 

His claim of standing as a bondholder is based on the assertion 
that actions taken by the FOMC pursuant to its pervasive regula- 
tory authority might cause him to be deprived of property without 
due process of law, particularly by inflation. The Court of Appeals 
found these allegations insufficient to confer standing because they 



155 

were too speculative. Also, the opinion noted, Congressman Reuss 
would have difficulty in establishing that the injury was caused to 
a sufficient degree by appellees, even if he could allege a more 
concrete injury. Furthermore, the court stated, there was no reason 
to believe that a declaration ultimately resulting in Presidential 
appointment of the entire FOMC would benefit Congressman Reuss 
in any way. Finally, the observation was made that his is a very 
generalized grievance, held in common, to some extent, with virtu- 
ally all members of the public. 

In rejecting Representative Reuss' allegations of standing, the 
court noted that there were strong similarities to the situation 
addressed by the Supreme Court in Buckley v. Valeo, 424 U.S. 1 
(1976) (per curiam), wherein the assertion of standing by a Member 
of Congress to challenge the composition of the Federal Election 
Commission was upheld. But, the court in this case held that, 
unlike the plaintiffs in Buckley, Congressman Reuss had not dem- 
onstrated a personal stake sufficiently indicating that he would 
benefit from a favorable decision on the merits. 

Judge Wright, in dissent, concluded that Buckley should be con- 
trolling, and that under Buckley, Representative Reuss should be 
declared to have standing as a bondholder to challenge the consti- 
tutionality of the composition of the FOMC. 

Congressman Reuss filed a petition for rehearing and a sugges- 
tion for rehearing en banc on July 21, 1978. The petition and 
suggestion were denied on August 14, 1978. 

On October 6, 1978, Congressman Reuss filed a petition for writ of 
certiorari in the United States Supreme Court which was denied on 
November 27, 1978. 

Status. — No further action has been taken. 

The opinion of the Court of Appeals is printed in the ' 'Decisions" 
section of Court Proceedings and Actions of Vital Interest to the 
Congress, Part 5, September 15, 1978. 

The full text of the District Court's memorandum opinion is 
printed in the ''Decisions" section of the report of Court Proceed- 
ings and Actions of Vital Interest to the Congress, December 1976. 

United States v. Podell 

Civil Action No. 77-6107 (2d Cir.) 

Brief— On October 1, 1974, then-Representative Bertram L. 
Podell entered a plea of guilty to 2 counts of a 10-count indictment 
charging him with conspiratorial and substantive violations of 18 
U.S.C. § 203(a). The indictment charged that while serving as a 
Member of Congress, Mr. Podell appeared before the Civil Aero- 
nautics Board and the Federal Aviation Administration and sought 
favorable treatment of an application for a new route for a small 
Florida-based airline, and that he was paid $41,350 for his services. 
Mr. Podell was fined $5,000 and was sentenced to a 2-year impris- 
onment with 18 months of the sentence suspended. [See the brief of 
United States v. Podell, Criminal Action No. 73 CR 675 (S.D.N.Y. 
October 1, 1974) in the report of Court Proceedings and Actions of 
Vital Interest to the Congress, April 15, 1975.] 



156 

On January 30, 1976, the United States filed a civil suit against 
Mr. Podell under 28 U.S.C. § 1345, seeking to recover the $41,350 
which he allegedly was paid for representing the airline before the 
agencies. 

In his answer, filed on May 20, 1976, Mr. Podell specifically 
denied each allegation in the complaint and further argued that 
prosecution was barred by the statute of limitations. 

The Government filed a motion for summary judgment on Febru- 
ary 22, 1977, to which Mr. Podell filed his opposition on April 5th. 
On May 30, 1977, U.S. District Judge Kevin T. Duffy issued an 
opinion and order granting the Government's motion for summary 
judgment in the amount of $40,000. The Government had argued 
that Mr. Podell's guilty plea in the criminal case estopped him 
from contesting his violation of 18 U.S.C. § 203 in this case, that 
the acts thereby admitted constituted a breach of the fiduciary 
duty he owed the United States, and that the Government could 
therefore recover under 28 U.S.C. § 1345 all amounts paid to Mr. 
Podell for these activities. The court added that a violation of Sec. 
203 establishes, as a matter of law, a breach of a fiduciary duty 
owed the United States, and that such a criminal conviction pre- 
cludes a defendant in a subsequent civil case from contesting those 
matters on which the conviction rests. As such, the court conclud- 
ed, Mr. Podell's plea of guilty in the criminal case conclusively 
established his breach of his fiduciary duty and he is accountable 
for the breach. His affirmative defense that the statute of limita- 
tions for fraud had run was without merit, said the court, since the 
charge against him was not fraud, but breach of a fiduciary duty. 
All that remained to be determined was the amount recoverable. 
The court found that as a matter of law $40,000 of the amount paid 
constituted Mr. Podell's compensation for his services in breach of 
his fiduciary duty, and granted the Government's motion for sum- 
mary judgment in that amount. 

On June 30, 1977, defendant filed a notice of appeal to the 
United States Court of Appeals for the Second Circuit, from the 
order of May 31, 1977. 

On July 1, 1977, Mr. Podell moved in the District Court for 
reargument of the Government's motion for summary judgment. 

On July 27, 1977, the Court of Appeals granted defendant's 
motion to withdraw his appeal without prejudice to refile by Sep- 
tember 23, 1977. 

On July 28, 1977, defendant's motion for reargument was denied. 

A judgment of $78,021 was entered against defendant on August 
16, 1977, representing the $40,000 recoverable by the Government 
with 6-percent interest and costs. 

On September 21, 1977, defendant filed an amended notice of 
appeal. 

The Court of Appeals issued its opinion on February 6, 1978, 
affirming the grant of summary judgment in favor of the Govern- 
ment. The court rejected Mr. Podell's argument that his reluctance 
to acknowledge the clear implications of his guilty plea creates any 
material issue of fact. The court noted that it is well settled that a 
criminal conviction constitutes estoppel in favor of the United 
States in a subsequent civil proceeding as to those matters deter- 
mined by the judgment in the criminal case. This general rule of 



157 

law was applied to the issue of Mr. Podell's guilty plea in the 
following manner: 

Unlike most guilty plea cases appellant's guilty plea was not 
entered in an evidentiary vacuum, but rather after the Govern- 
ment had presented its entire case and Podell had begun to present 
his own. The teaching of the Supreme Court in Emich Motors v. 
General Motors [340 U.S. 558, 569 (1951)], is that in a situation 
involving the estoppel effect of a criminal judgment resting on a 
general conspiracy count, the court in a subsequent civil case 
should determine precisely what was decided in the criminal case 
by examining the record of the criminal trial, including the plead- 
ings, the evidence submitted, and any opinions of the court. In this 
case, the elements of the charges in the indictment were amply 
supported in the trial record. [Slip Opinion at 1477-1478.] 

Defendant-appellant Podell's argument that the Government 
failed to state a claim was also rejected. The opinion held that 18 
U.S.C. § 218, which authorizes the United States to bring suit to 
recover any sum paid by the Government in relation to a violation 
of the conflict of interest statute, does not preclude actions to 
impress a constructive trust on money received by the wrongdoer 
from third persons. 

Status. — No further action has been taken. The time for further 
appeal has expired. 

The complete text of the opinion of the Court of Appeals is 
printed in the * 'Decisions" section of the report of Court Proceed- 
ings and Actions of Vital Interest to the Congress, Part 4, May 15, 
1978. 

The complete text of the opinion and order of the District Court 
is printed in the "Decisions" section of Court Proceedings and 
Actions of Vital Interest to the Congress, Part 2, August 15, 1977, at 
859. 

Clay v. Bauman 

Cause 61857-F (Circuit Court of the City of St. Louis, Mo.) 

Brief — Representative William L. Clay brings action for damages 
in the amount of $2 million for libel against G. Duncan Bauman 
(publisher of the St. Louis Globe Democrat), The Herald Company's 
Globe Democrat Division (a Missouri corporation), and Dennis Mc- 
Carthy (reporter), George A. Killinberg (managing editor), and 
Martin Duggan (editor). 

The suit was orginally filed in the U.S. District Court for the 
District of Columbia, but pursuant to defendants' motion, the cause 
was dismissed from that jurisdiction on the basis of forum non 
conveniens. 

On August 4, 1976, Representative Clay filed his petition for 
relief in Circuit Court of the City of St. Louis. He alleges that the 
St. Louis Globe Democrat printed two libelous articles about him 
with knowledge that both were false. 

On September 24, 1976, defendants filed their answer, in which 
they denied the allegation that they knew or should have known 
the articles were untrue, asserted both articles are privileged 
under the First Amendment to the Constitution, and stated that 
their statements were true in substance in all respects. 

Status. — The case is pending before the Missouri Court. 



158 

McRae v. Califano 

No. 76-C-1804 (E.D.N.Y.) 

Brief. — Plaintiffs in this case sought to invalidate Section 209 
(the Hyde amendment) of the 1977 Appropriations Act for the 
Department of Labor and the Department of Health, Education, 
and Welfare (hereinafter "HEW") [Pub. L. 94-439] including fund- 
ing for Title 19 of the Social Security Act (Medicaid). Section 209 
provides that: 

None of the funds contained in this Act shall be used to 
perform abortions except when the life of the mother 
would be endangered if the fetus were carried to term. 

Cora McRae is a citizen of New York who was in the first 
trimester of her pregnancy and had decided to terminate her preg- 
nancy after consulting with her physician. 

Other plaintiffs are Planned Parenthood of New York City, Inc., 
Dr. Irwin B. Teran, an obstretician and gynecologist suing individ- 
ually and on behalf of others similarly situated, and the New York 
City Health and Hospitals Corporation. Named as defendant in the 
suit filed in the United States District Court for the Eastern Dis- 
trict of New York was the Secretary of the Department of Health, 
Education, and Welfare (at the time David Mathews). 

During the proceedings, Representative Henry J. Hyde, Senator 
Jesse A. Helms, and then-Senator James Buckley sought to inter- 
vene in support of the legislation. They cited as grounds their 
interest as Members of Congress in seeking to protect their votes in 
favor of the Hyde amendment for judicial nullification, and their 
interest as citizen-taxpayers. They argued that in passing Section 
209, Congress made it clear that it was not appropriating any 
money for elective, nonmedically dictated abortions for the period 
October 1, 1976 to September 30, 1977. They also asserted that 
because Article I, Section 9, clause 7 of the Constitution grants 
Congress the exclusive power of appropriating money, and a judi- 
cial invalidation of the Hyde amendment would amount to a judi- 
cial appropriation of funds in violation of the Constitution, "[i]t is 
beyond the competence of any court, State or Federal, to sit in 
judgment respecting the wisdom of Congress when Congress refuses 
to make appropriations." 

On October 22, 1976, U.S. District Judge John Dooling issued a 
preliminary injunction against enforcement of the Hyde amend- 
ment. He reviewed Title 19 of the Social Security Act, saying that 
it had been enacted to enable each State to furnish medical assist- 
ance on behalf of families with dependent children and that it had 
authorized a new appropriation for each fiscal year of a sum "suffi- 
cient to carry out the purposes" of Title 19. The court declared that 
New York adopted Title II of the New York Social Services Act, 
with a goal of making high quality medical care available to every- 
one regardless of race, age, national origin, or economic standing. 
The court also reviewed a 1976 New York decision which said that 
Medicaid payments may not constitutionally be denied for elective 
abortions, and a 1975 Connecticut Federal District Court decision 



159 

which held that a State cannot constitutionally deny medical as- 
sistance to indigent women seeking elective abortions. 

HEW argued that plaintiffs would suffer no harm from the cutoff 
of funds, since the State, under its own laws and possibly under 
Federal constitutional imperatives, must continue to reimburse 
providers of elective abortions for indigents. The court rejected this 
argument, saying that these people were citizens of the United 
States as much as of the individual States — the relationship in- 
volved is one in which the States are charged with carrying out the 
responsibilities of the Federal Government to the Federal Govern- 
ment's own citizens, and not one in which the Federal Government 
merely grants voluntary benefits to States for providing services to 
the States' citizens. The State might well find funds to provide for 
these services said the court, but merely because a catastrophe 
may not follow an unconstitutional denial of an entitlement does 
not make such action tolerable. 

The court then turned to the petition of the Members of Con- 
gress to intervene. First, Judge Dooling rejected as grounds for 
intervening their interest as Members of Congress. He found that 
they had suffered no legal injury to the validity of their votes, as 
was the case in Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974). 
The court continued: 

But that clear right — in effect, to have his vote counted 
at its full legal value — is not involved here. No one has 
challenged the correctness of the process of enactment. 
The challenge is to the constitutional validity of one sec- 
tion of a correctly enacted law. To grant intervention on 
the ground of the members' participation in enacting the 
law would involve accepting as a principle that each 
member of the Congress has an interest to intervene in 
every case in which the substantive constitutionality of a 
provision in a federal enactment was drawn into question, 
or, indeed, in which the interpretation of a federal statute 
was in question. [McRae v. Mathews, 421 F. Supp. 533 
(E.D.N.Y. 1976).] 

However, the court then found that, since they were challenging 
the legality of a specific expenditure, the interest of the Members 
as citizen-taxpayers was sufficient to allow them to intervene 
under Flast v. Cohen, 392 U.S. 83 (1968). The court then noted that 
even had this interest not been sufficient, their comments would 
have been welcome as the submission of amici curiae. 

The court said that in declaring the Hyde amendment unconsti- 
tutional, it was not appropriating funds in violation of Article I, 
Section 7, clause 9. Congress had determined that the funds it 
appropriated were sufficient to carry out title 19 and had only 
sought to restrict the circumstances in which the funds could be 
used to pay providers of lawful abortional services. Since that 
prohibition transcends constitutional rights, the court ruled, it 
cannot be given effect. Determining that plaintiff McRae and 
others similarly situated would suffer irreparable harm if the sec- 
tion were given effect, the court issued the injunction. 

On October 29, 1976, the court denied a motion of HEW to 
amend its order of October 22, 1976, to provide that Medicaid 



160 

reimbursement paid under the order was subject to recoupment if 
the order were to be reversed on appeal. 

The Congressional intervenors filed an appeal with the Supreme 
Court on November 17, 1976. Their jurisdictional statement assert- 
ed that the questions presented to the court for its determination 
are: 

(1) Whether the United States District Court for the 
Eastern District of New York exceeded its jurisdiction in 
entertaining respondent's complaint on its merits and in 
directing the Secretary of Health, Education and Welfare 
to expend federal funds for elective abortions. 

(2) Whether there is a rational basis for the Congression- 
al classification between medically dictated abortions and 
elective abortions. [Appellants' Jurisdictional Statement at 
10, Buckley v. McRae, No. 76-694 (U.S. Supreme Court).] 

The Justice Department filed an appeal on behalf of Joseph A. 
Califano, now the Secretary of HEW, on February 11, 1977. [Cali- 
fano v. McRae, No. 76-1113 (U.S. Supreme Court).] 

One June 29, 1977, the U.S. Supreme Court dismissed the appeal 
in Buckley v. McRae in a brief order. That same day they also 
vacated the judgment of the lower court in Califano v. McRae and 
remanded the case to Judge Dooling for further consideration in 
light of the Supreme Court's decision in Maker v. Roe, 45 U.S.L.W. 
4787 (U.S. June 20, 1977). [In that case the Court held that a State 
participating in the medicaid program was not required by the 
Equal Protection clause of the Fourteenth Amendment to pay for 
nontherapeutic abortions for indigent women simply because, as a 
matter of policy, the State paid for expenses incident to childbirth.] 

In the District Court, plaintiffs filed a motion for a temporary 
restraining order on July 27, 1977. 

At a hearing on July 28, 1977, Judge Dooling granted the order 
temporarily restraining effectuation of the Hyde amendment pend- 
ing a hearing on the plaintiffs motion for a preliminary injunction, 
and ordered the defendants to continue to pay the Federal share of 
abortions in accordance with procedures prior to the enactment of 
the Hyde amendment. 

On August 4, 1977, at a hearing before Judge Dooling, the tempo- 
rary restraining order was vacated. 

The case was called before Judge Dooling on August 11, 1977, 
and the hearing was resumed. At the conclusion of the proceedings 
that day, the hearing was continued to September 6, 1977. 

The case was again called before Judge Dooling on September 
6, 1977, and hearing resumed. 

On October 3, 1977, the U.S. Supreme Court denied the petition 
for rehearing in Califano v. McRae. 

On January 9, 1978, plaintiffs filed an amended complaint, to 
which defendants filed their answer on January 25, 1978. 

On February 9, 1978, the Catholic League for Religious and 
Civil Rights moved to intervene as a party defendant. Plaintiffs 
opposed the motion, which was argued on February 14, 1978. The 
motion was denied at the hearing, except to the extent that peti- 
tioners were allowed to appear as amici curiae. 



161 

In the month of August 1978, various organizations, including 
the National Organization for Women Legal Defense and Educa- 
tion Fund and various psychiatric associations and religious or- 
ganizations moved to file briefs as amici curiae and were granted 
permission to do so. 

Plaintiffs filed a notice of motion for entry of default judgment 
on October 3, 1978, in opposition to which intervenor-defendants 
filed an affidavit on October 11, 1978. 

On November 28, 1978, Judge Dooling ordered the further 
amendment of the amended complaint. 

Status. — The case is pending before the District Court. 

The memorandum and order of the District Court is printed in 
the "Decisions" section of the report of Court Proceedings and 
Actions of Vital Interest to the Congress, Part 1, April 15, 1977. 

Ray v. Proxmire 

No. 78-5316 (U.S. Supreme Court) 

Brief.— On February 10, 1977, Candis O. Ray, acting as her own 
attorney, filed this action in the United States District Court for 
the District of Columbia. Named as defendants were Senator Wil- 
liam Proxmire and his wife, Ellen Proxmire. 

The complaint alleges among other things, that Mrs. Proxmire, a 
salaried officer of the Washington Whirl Around Tour Company, is 
using her position and her husband's Senate position "for profit 
making purposes in competition to Plaintiff, in luring the Con- 
gress — Bill — lobbying association customers away from plaintiff, 
damaging her and her chances of income and a livelihood, thus 
forcing her out of business by engaging in influence peddling and 
unfair competition, and conflict of interest activities. * * *" [Com- 
plaint at 2.] 

On April 6, 1977, in a brief order the complaint was dismissed, 
and on May 3, 1977, notice of appeal was filed. 

The Court of Appeals affirmed the ruling of the District Court on 
July 31, 1978. The per curiam opinion stated that, even given its 
broadest reading, the complaint did not denote any legally action- 
able conduct. 

In its opinion, the court turned first to the claim that Ms. Ray 
had been libeled and her business disparaged in a letter written by 
Senator Proxmire to Senator Cannon, Chairman, at the time, of 
the Senate Select Committee on Standards and Conduct. Since 
Senator Proxmire was responding to a Senate inquiry into an 
exercise of his official powers, the court declared, he was engaged 
in a matter central to the jurisdiction of the Senate, and was 
therefore protected by the Speech or Debate clause of the Constitu- 
tion (Art. I, Sec. 6, cl. 1). The opinion expressed no view as to 
whether the statement in question could be actionable under gen- 
eral principles of the law of defamation. 

The other allegations against Senator Proxmire, that he ar- 
ranged for use of Senate rooms by Whirl-Around's clientele and 
that he voted favorably to positions supported by its existing or 
potential customers in order to further Whirl-Around's interests, 
were also held to provide no basis for suit by appellant. In regard 
to these allegations the court stated: 



162 

As to the first, appellant alludes to a Senate rule sup- 
posedly prohibiting such uses of the rooms and to the 
proposition that governmental facilities should not be used 
for private gain at public expense. For the second, appel- 
lant invokes the criminal statute forbidding Senators from 
accepting favors in return for influence on their official 
performances. Neither of these considerations provides ap- 
pellant with a private cause of action nor serves to define 
the Senator's duty of care in a common-law-tort cause of 
action. [Slip Opinion at 4-5.] (Footnotes omitted.) 

The claim of unfair competition was deemed by the Court to be 
the strongest of appellant's claims. This claim was also rejected by 
the opinion which stated: 

In a society encouraging aggressive economic competi- 
tion, this court has recognized that the tort of unfair com- 
petition is a somewhat anomalous creature. Its scope has 
therefore been limited to three categories: passing off one's 
goods as those of another, engaging in activities designed 
solely to destroy a rival and using methods themselves 
independently illegal. The case at bar does not fall within 
the first classification, and the second is intercepted by 
appellant's complaint itself. 



That leaves only the third category — unlawful competi- 
tive mechanisms — and the insuperable difficulty there is 
that simple use of one's status in society is not itself 
illegal. [Slip Opinion at 8-9.] (Footnotes omitted.) 

The Court of Appeals also dealt with appellant's suggestion that 
because she was formally without counsel until oral argument of 
the appeal, her complaint must be construed with great liberality. 
The complaint was dismissed, the opinion stated, not because ap- 
pellant appeared pro se but because none of the factual allegations 
or inferences which could be deduced therefrom made out a cause 
of action against either appellee. Finding that there was no plausi- 
ble suggestion that appellant could make out a cause of action with 
counsel, the Court of Appeals declined to remand the case to the 
District Court. 

On August 31, 1978, Ms. Ray filed a petition for writ of certiorari 
with the United States Supreme Court. 

Status. — The petition for writ of certiorari was denied by the 
Supreme Court on October 30, 1978. No further action has been 
taken. 

The opinion of the Court of Appeals is printed in the ' 'Decisions" 
section of Court Proceedings and Actions of Vital Interest to the 
Congress. Part 5, September 15, 1978. 

Young v. New York Times Company 

Civil Action No. 77-0984 (D.D.C.) 

Brief.— On June 9, 1977, Representative John Young filed this 
action against the New York Times Company and the New York 



163 

Times News Service which published and transmitted to numerous 
newspapers for publication a series of articles which asserted that 
Congressman Young had engaged in certain illegal and improper 
conduct. John Crewdson and Nicholas Horrock, both reporters for 
the New York Times who were involved in the preparation of the 
articles complained of, are also defendants. Also named as defend- 
ants are Colleen Gardner, a former employee of Congressman 
Young, and her attorney Sol Rosen, who are alleged to have en- 
tered into a conspiracy with the above-named defendants. 

Congressman Young's complaint asserts that the articles which 
were caused to be published by the defendants were false and 
published with malice in that the defendants knew that material 
statements in the article were false, and the statements were pub- 
lished with the intent of injuring him. 

Congressman Young also alleges that as part of the conspiracy 
the defendants caused a number of telephone conversations be- 
tween himself and others to be intercepted and recorded without 
his knowledge in an attempt to injure him. Additionally, Congress- 
man Young alleges that in furtherance of the conspiracy defend- 
ants caused false statements to be made about him and his activi- 
ties to the Federal Bureau of Investigation and the Justice Depart- 
ment. 

Each of the acts complained of by Congressman Young was done, 
he asserts, for the purpose of creating a lurid scandal and to 
damage his private life and his public career. As damages Con- 
gressman Young asks $1 million in general damages and $1 million 
in punitive damages. 

On November 14, 1977, defendants Gardner and Rosen filed their 
answer to the complaint. As part of their answer they filed a 
counterclaim against Representative Young asserting that the com- 
plaint had been filed solely to harass them. They ask for $2 million 
in damages. 

An order granting the motion of plaintiff to dismiss the counter- 
claim was filed on January 31, 1978. 

Status. — The action is pending before the United States District 
Court for the District of Columbia. 

Rosen v. Young 

Civil Action No. 76-1663 (D.D.C.) 

Brief.— On September 7, 1976, Sol Z. Rosen filed this action in 
the United States District Court for the District of Columbia. Mr. 
Rosen, a Washington, D.C. attorney, alleged that Representative 
John Young had, in a press release, accused him of making false 
accusations about Representative Young. Later, Mr. Rosen amend- 
ed the complaint to include a second count alleging that Repre- 
sentative Young had once again made a statement to a newspaper 
asserting that Mr. Rosen had made misstatements and misrepre- 
sentations about him. 

Congressman Young filed a motion to dismiss on July 19, 1978. 
The motion was denied on July 27, 1978. 

On November 6, 1978, Mr. Rosen filed an offer of judgment in 
which he offered to dismiss the action against Congressman 
Young in return for a dismissal of the Congressman's suit against 



164 

him, Young v. New York Times et al, C.A. No. 77-894 (D.D.C., filed 
June 9, 1977). (A brief of that case appears in this report at 162.) 
On November 14, 1978, Congressman Young filed a response to 
plaintiffs offer of judgment opposing the filing of the document 
and suggesting that it be stricken from the record. 

Status. — The action is pending before the United States District 
Court for the District of Columbia. 

Gardner v. Young 

Civil Action No. 77-1435 (D.D.C.) 

Brief. — On August 22, 1977, Colleen Gardner filed this complaint 
in the United States District Court for the District of Columbia. 
Ms. Gardner asserts that Congressman Young in two separate 
statements to the press made slanderous and defamatory accusa- 
tions about her. 

Ms. Gardner seeks $5 million in compensatory damages and $5 
million in punitive damages for each of the two statements. 

Defendant's motion to dismiss was denied on January 31, 1978. 

Congressman Young filed an answer to the complaint on Febru- 
ary 21, 1978. 

On November 6, 1978, Ms. Gardner filed an offer of judgment in 
which she offered to dismiss the action against Congressman 
Young in return for a dismissal of the Congressman's suit against 
her, Young v. New York Times et al, C.A. No. 77-894 (D.D.C, filed 
June 9, 1977). (A brief of that case appears in this report at 162.) 

On November 14, 1978, Congressman Young filed a response to 
plaintiffs offer of judgment opposing the filing of the document 
and suggesting that it be stricken from the record. 

Status. — The action is pending before the United States District 
Court for the District of Columbia. 

Helstoski v. Goldstein 

Civil Action No. 75-1802 (D.N.J.) 

Brief. — On October 21, 1975, then-Representative Henry Hel- 
stoski filed this suit as a class action primarily seeking injunctive 
relief against the Office of the United States Attorney for the 
District of New Jersey and Jonathan Goldstein, the United States 
Attorney for that district, to prevent alleged violations of the plain- 
tiffs constitutional rights. The complaint set out ' 'innumerable 
violations of due process in the utilization of multiple Grand 
Juries" and "numerous violations of the plaintiffs rights which 
were occurring as a result of an alleged investigation being con- 
ducted by the defendants. * * *" [Brief and Appendix on Behalf of 
Henry Helstoski — Plaintiff-Appellant at 1.] 

Mr. Helstoski asked the court to mandate several remedial ac- 
tions including damages, the disqualification of the defendant-pros- 
ecutors relative to the investigation of the plaintiff, an injunction 
against certain activities taken by the prosecutors allegedly in 
violation of the plaintiffs rights, and the return of numerous of 
plaintiffs records which had been obtained by the defendants. 



165 

On January 12, 1976, the defendants moved for a dismissal. On 
June 2, 1976, an indictment was returned against the plaintiff. [See 
brief of United States v. Helstoski.] And 6 days later, on June 8, 
1976, the defendants' motion to dismiss in this action was granted. 

Appeal was taken by the plaintiff to the Third Circuit Court of 
Appeals. 

On March 28, 1977, the Court of Appeals issued its per curiam 
opinion reversing the judgment of the District Court and remand- 
ing the action for further proceedings. 

The court concluded that certain of the allegations made in Mr. 
Helstoski's complaint assert action by the U.S. Attorney's office 
which are outside the sphere of the proper elements of a prosecu- 
tor's job. The court particularly noted that Mr. Helstoski had as- 
serted that the U.S. Attorney's office deliberately leaked false in- 
formation about him in an effort to injure him politically. This 
type of activity, the court declared, if it occurred, would "lie out- 
side of the rationale for absolute immunity. * * * At most, it would 
be subject to a qualified good-faith immunity." [Helstoski v. Gold- 
stein, 552 F.2d 564, 566 (3d Cir. 1977).] 

On June 13, 1977, Mr. Helstoski filed a motion in the District 
Court seeking an ertry of a default judgment, a bar to the use of 
Government funds, and a bar to the taking of depositions by 
defendant. 

On the same day, the defendant filed an answer and a demand 
for a jury trial. 

On September 1, 1977, Mr. Helstoski's motion for entry of default 
judgment was withdrawn. 

On the same day, Mr. Helstoski's motion to file an amended 
complaint was granted. 

The amended complaint, filed on September 30, 1977, sought a 
declaratory judgment that plaintiffs rights under the First, Fifth, 
and Sixth Amendments of the U.S. Constitution and the principles 
of the Separation of Powers have been violated as well as $250,000 
in compensatory damages and an equal amount in punitive dam- 
ages, in lieu of the injunctive relief sought in the original com- 
plaint. 

Status.— The case is pending in the United States District Court 
for the District of New Jersey. 

The complete text of the opinion of the Court of Appeals is 
printed in the "Decisions" section of Court Proceedings and Actions 
of Vital Interest to the Congress, Part 2, August 15, 1977. 

Cervase v. Rangel 

No. T-9576 (Second Cir.) 

Brief.— On September 30, 1976, this action was filed in the 
United States District Court for the Southern District of New York. 

The complaint alleges that the defendant Representative Charles 
Rangel has mailed, under his frank, and in envelopes printed at 
Government expense, newsletters and literature from the Congres- 
sional Black Caucus. 

Mr. Cervase asserts that these mailings which he alleges causes 
public money to be spent for the benefit of a private corporation 
violate 39 U.S.C. § 3210. 



166 

The complaint asks for a declaratory judgment that the mailings 
violate the law, and for an injunction prohibiting Congressman 
Rangel from using his frank for the mailing of Congressional Black 
Caucus documents. 

On March 1, 1977, Representative Rangel filed a motion to dis- 
miss. As grounds he asserted that 2 U.S.C. § 501(e) denied the 
jurisdiction of the courts over this subject matter and that the 
amount in controversy did not meet the $10,000 threshold require- 
ment for diversity jurisdiction. 

On November 6, 1978, District Judge Broderick filed a memo- 
randum order granting Congressman Rangel's motion to dismiss 
the complaint. Finding that Mr. Cervase did not have standing to 
bring the action and that this lack of standing would not be cured 
by the proposed amendment, District Judge Broderick denied Mr. 
Cervase's motion to amend, along with the dismissal of the com- 
plaint. 

The memorandum order noted that the only injury alleged was 
that the defendant's allegedly illegal acts caused or would cause 
an increase in Mr. Cervase's Federal tax liability and therefore he 
could have standing only as a Federal taxpayer. The holding that 
Mr. Cervase lacked standing to sue as a Federal taxpayer was 
based upon the decisions of the Supreme Court in Flast v. Cohen, 
392 U.S. 83 (1968) and Schlesinger v. Reservists Committee to Stop 
the War, 418 U.S. 208 (1974). Under Flast, Judge Broderick noted, 
to establish standing, a plaintiff must show a nexus between his 
taxpayer status and the legislation attacked; which legislation 
must constitute an exercise by Congress of its power under the 
taxing and spending clause of Article I, Section 8 of the Constitu- 
tion, and he must establish a nexus between his taxpayer status 
and an alleged constitutional infringement. The memorandum 
order stated that the Supreme Court's decision in Reservists Com- 
mittee indicates that the Flast test was applicable to Mr. Cervase's 
suit and that under that test he lacked standing. The court con- 
cluded: 

Reservists Committee suggests that the Flast test is to be 
strictly applied to bar taxpayer suits that do not involve 
allegations that a federal statute is unconstitutional. Re- 
servists Committee distinguishes between allegedly uncon- 
stitutional statutes and allegedly unconstitutional con- 
duct of government officials. Alleging the former may 
confer standing, but alleging the latter will not. It would 
seem to follow that the mere allegation of illegal conduct 
by a Congressman does not suffice to confer standing on 
a taxpayer. [Cervase v. Rangel, 76-4344, S.D.N. Y.; Slip 
Opinion at 7, this report at 317.] 

Mr. Cervase filed a notice of appeal on November 21, 1978. 

Status. — Mr. Cervase's appeal is pending before the U.S. Court 
of Appeals for the Second Circuit. 



167 

The complete text of the memorandum order is printed in the 
"Decisions" section of this report at 313. 

United States v. Goldberg 

Cr. No. 77-33 (D. Mass.) 

Brief. — Defendants in this case are, according to the indictment, 
Blue Ribbon Frozen Food Corporation, Inc. (hereinafter "Blue 
Ribbon"), located in Hamden, Conn., and its wholly owned subsidi- 
ary, G & G Packing Co., Inc. (hereinafter "G & G"), located in 
Roxbury, Mass., both of whose principal business was the process- 
ing and sale of beef to the U.S. Department of Defense, Defense 
Supply Agency; Harry Goldberg, as joint owner and president of 
both firms; David Frank Goldberg, a joint owner of both firms, vice 
president and treasurer of Blue Ribbon and treasurer of G & G; 
Stephen Goldberg, Fred Romano, and Frank Ravasini, all employ- 
ees of G & G; and Manuel Pacheco, a senior Army meat inspector, 
assigned by the Army to inspect meat for it at G & G. The indict- 
ment was returned by a grand jury sitting in the district of Massa- 
chusetts on February 2, 1977, and a superseding indictment was 
returned on March 16, 1977. 

The indictment charged each defendant with one count of violat- 
ing 18 U.S.C. § 371 (conspiracy), 23 counts of violating 18 U.S.C. 
§ 210 (bribery and gratuities), and 24 counts of violating 18 U.S.C. 
§ 1001 (concealment). In general the nonmilitary defendants were 
charged with providing Department of the Army meat inspectors 
with bribes in exchange for their accepting from Blue Ribbon and 
G & G lower grades of meat than were called for by Army regula- 
tions, and by accepting less costly cuts of meat which the employee- 
defendants of the firms had prepared to resemble more expensive 
cuts. 

On March 14, 1977, pursuant to a plea bargain agreement, Mr. 
Pacheco pleaded guilty to the conspiracy count of the indictment. 
His disposition date was continued. 

On April 25, 1977, defendants Harry Goldberg, Blue Ribbon, and 
G & G filed a plea bargain agreement in which Mr. Goldberg 
pleaded guilty to the conspiracy count and one count of bribery, 
and the corporations pleaded guilty to the conspiracy count. Their 
cases were continued for disposition until the conclusion of the 
remainder of the case. 

On June 24, 1977, the Senate adopted S. Res. 205, 95th Cong., 1st 
Sess. (1977), which reads in part: 

Sec. 4. That, Senator Lawton Chiles, Senator Lowell 
Weicker, and Senator Sam Nunn are authorized in re- 
sponse to subpoenas duces tecum; and Lester A. Fettig, 
Claudia T. Ingram, and Edward Roeder are authorized in 
response to subpoenas ad testificandum; issued on behalf 
of Ferdinand Romano, defendant in the case of United 
States v. Harry Goldberg et al, (No. CH-77-33-C) pending 
in the United States District Court, District of Massachu- 
setts to appear together with documents relating to the 
consideration of Congressional use immunity for said de- 
fendant and to testimony taken under a grant of such 
immunity, and testify to and only to, any alleged proffers 



168 

of information made by the above named defendant or his 
counsel to a Senator of the United States or an officer or 
employee of the United States Senate, any testimony 
taken under a grant of use immunity to said defendant, 
the use, if any, of information obtained from any such 
proffers and to information, if any, turned over to the 
Department of Justice of the United States as a result of 
any such proffers or testimony. 

On September 26, 1977, a plea bargain agreement was filed, and 
a plea of guilty entered by David Frank Goldberg. The action 
against him was continued for disposition until the conclusion of 
the rest of the case. 

On November 9, 1977, the court found Mr. Romano to be compe- 
tent to stand trial and a trial by jury of the charges against him 
was begun on November 14, 1977. On November 17, 1977, the jury 
returned a verdict of guilty. 

On December 14, 1977, the District Court issued a memorandum 
and order reaffirming its earlier denial of Mr. Romano's motion to 
dismiss the indictment or suppress evidence on the ground that the 
Government's evidence was obtained in violation of his immunity 
agreement. 

On December 28, 1977, Mr. Romano filed a notice of appeal of 
the guilty verdict. 

The indictment against Stephen Ira Goldberg was dismissed on 
January 4, 1978. Also, on January 4, 1978, the other defendants 
were sentenced. Defendant Harry Goldberg was sentenced to 4 
years in prison on count 1 and 2 years in prison on count 2, to be 
served concurrently and fined $5,000 on each of counts 1 and 2 for 
a total fine of $10,000. Defendant David Frank Goldberg was sen- 
tenced to 4 years in prison and fined $10,000. Defendant Frank 
Ravasini was sentenced to 3 years in prison and fined $5,000. 
Defendants Blue Ribbon Frozen Food Corp., Inc. and G & G Pack- 
ing Company, Inc., were both fined $10,000. 

On January 5, 1978, Mr. Ravasini moved to revise his sentence. 

On January 8, 1978, the indictment was dismissed against Blue 
Ribbon Frozen Food Corporation, Inc. and G & G Packing Compa- 
ny, Inc. 

On January 23, 1978, judgment and commitment order were 
entered against Manuel Pacheco. 

On March 25, 1978, Mr. Pacheco moved to revise his sentence. 

On May 2, 1978, Mr. Ravasini moved for a reduction of his 
sentence. On May 3, 1978, Mr. Harry Goldberg moved to reduce 
and revise his sentence and Mr. David Frank Goldberg moved to 
reduce his sentence. Mr. Harry Goldberg's motions and Mr. David 
Frank Goldberg's motion were denied on May 19, 1978. Mr. Pache- 
co's motion was denied on June 5, 1978. 

On August 11, 1978, the Court of Appeals for the First Circuit 
issued an opinion in the appeal filed by defendant Romano. Mr. 
Romano had argued that the evidence adduced by the Government 
at trial had been obtained in violation of use immunity which had 
been granted to him pursuant to an application by the Senate 
Subcommittee on Spending Practices, Efficiency, and Open Govern- 
ment of the Senate Government Operations Committee. 



169 

Before trial, the District Court held a 3-day hearing on Mr. 
Romano's motion to dismiss the indictment or suppress evidence on 
this ground. The court concluded that: 

"the United States had met the heavy burden imposed by 
Kastigar v. United States, 406 U.S. 441, 460-62 (1972), and 
had shown that the source of the evidence that the Depart- 
ment of Justice intended to use in the Romano prosecution 
originated from sources completely independent of Ro- 
mano's immunized Senate testimony." The district court 
also found that a proffer of evidence made in October 1975 
by Romano's counsel to members of the Subcommittee in 
order to obtain a grant of immunity was not the source of 
any evidence relied on by the Government either before 
the grand jury or at the trial, and, additionally, that the 
information contained in the proffer was not insulated 
from Government use by the terms of Sec. 6002 or the 
Kastigar decision. [United States v. Romano No. 78-1046 
(1st Cir.); Slip Opinion at 2.] 

In reaching this conclusion the court noted that Mr. Romano had 
been subpoenaed to appear before the subcommittee. Mr. Romano, 
asserting his Fifth Amendment right against self-incrimination, 
refused to testify. Subsequently, Mr. Romano's attorney met with 
Senator Lawton Chiles, chairman of the subcommittee, and Sena- 
tor Lowell Weicker, a ranking member of the subcommittee. In 
that meeting, Mr. Romano's attorney sought a grant of use immu- 
nity from the subcommittee in exchange for his client's testimony. 
Mr. Romano's attorney apparently gave the Senators some glimpse 
of what his client's testimony would be. This proffer was described 
as "a 'general' one outlining Romano's willingness to testify about 
some practices of G & G including the substitution of inferior for 
the specified cuts." [Slip Opinion at 4.] (Footnote omitted.) 

The next day, the Senators met with the Justice Department 
official who had begun a criminal investigation of the defendants 
and informed him of the proffers. Although the Justice Depart- 
ment asked the subcommittee not to seek immunity, fearing that 
such action might complicate its ability to make its case, the sub- 
committee, on November 13, 1975, nonetheless voted to seek an 
immunity order. The order was granted by the United States Dis- 
trict Court for the District of Columbia on November 24, 1975. 

The subcommittee, responding to a request by the Attorney Gen- 
eral, delayed hearing Romano's testimony. The Court of Appeals 
summarized the relevant events of April and May 1976 in this 
manner: 

In early April 1976, a grand jury began investigation of 
Romano and was presented with depositions of Pacheco 
and Reidinger and the testimony of Hoyer-Booth, Johnson 
and Kehl. Romano's testimony was finally scheduled for a 
closed executive session of the Subcommittee on April 29, 
1976. Graham drafted and circulated a memo dated April 
19, 1976, alerting his staff and the DIS [Defense Investiga- 
tive Services, a branch of the Defense Department which 
assisted the Senate Subcommittee in its preliminary inves- 
tigation] staff to the upcoming testimony, and directing 



170 

them to avoid all access or contact with any reports, per- 
sonal or journalistic, of the testimony. On April 25, 1976, 
two DIS employees assigned to Romano's case drafted a 
memo summarizing the case against Romano as it stood 
before any testimony was taken: the memo refers to testi- 
mony of Edward Kehl and interviews with Hoyer-Booth as 
well as other unnamed sources, and details the substitu- 
tion of cuts and bribery with which Romano was subse- 
quently charged. On April 27, 1976, two days before Ro- 
mano's scheduled testimony, the Department of Justice 
through the Attorney General received a packet of materi- 
als from Senators Chiles and Weicker, outlining "all evi- 
dence and 'leads' gathered by the subcommittee, particu- 
larly information which may not yet have come to the 
attention of the Justice Department, and which may sug- 
gest criminal wrongdoing by Mr. Romano." 

Finally, on April 29, 1976, Romano testified before the 
Subcommittee. A press conference on the subject of the 
hearings, covering the evidence accumulated to date, was 
held by the Subcommittee on May 7, 1976, and received 
"fairly heavy press coverage." Romano again testified 
before the Subcommittee at a public session on May 13, 
1976. [Slip Opinion at 6-7.] 

18 U.S.C. § 6002, the statute pursuant to which the subcommittee 
sought use immunity for Mr. Romano reads, in pertinent part: 

Whenever a witness refuses, on the basis of his privilege 
against self-incrimination, to testify or provide other infor- 
mation in a proceeding before or ancillary to — 



(3) either House of Congress, a joint committee of the 
two Houses, or a committee or a subcommittee of either 
House, and the person presiding over the proceeding com- 
municates to the witness an order issued under this part, 
the witness may not refuse to comply with the order on 
the basis of his privilege against self-incrimination; but no 
testimony or other information compelled under the order 
(or any information directly or indirectly derived from 
such testimony or other information) may be used against 
the witness in any criminal case, except for a prosecution 
for perjury, giving a false statement, or otherwise failing 
to comply with the order. 

Mr. Romano argued that his proffer to the Senators was "other 
information," the use of which is barred by the statute's prohibi- 
tion upon reliance on "any information directly or indirectly de- 
rived from such testimony or other information." This assertion 
the court rejected, declaring: 

The parallel construction in the phrases emphasized above 
indicates that the "such testimony or other information" 
of which derivative use is prohibited, refers to the "testi- 
mony or other information compelled under the order" 
whose direct use is banned in the phrase immediately 



171 

preceding. By definition, a proffer cannot be considered 
testimony or information compelled by an order since, 
when made, no order has issued. Nor can it logically be 
said that in some sense a proffer is directly or indirectly 
derived from subsequent protected testimony. Such a 
casual relation is chronologically impossible. [Slip Opinion 
at 8-9.] 

Mr. Romano also argued that the effect of permitting use of a 
proffer that resulted in protected testimony could discourage the 
use of the immunity statute by limiting or eliminating communica- 
tion between the attorney for a witness and the investigative body. 
To this argument the court responded: 

Romano warns that such a rule would burden the nego- 
tiations for immunity by imposing a great risk on a proffer 
detailed enough to satisfy an investigative body that a 
grant of immunity would be in fair exchange. The immuni- 
ty conferred on a party who makes a proffer and testifies 
under a Sec. 6005 order is not transactional immunity, 
however, but use and derivative use immunity. The inves- 
tigative body does not need to learn a great deal about the 
witness' expected testimony in order to avoid buying "a 
pig in a poke": if the latter testimony is useless, the scope 
of the immunity will be correspondingly small. A general 
and brief outline of the areas in which the potential wit- 
ness could aid the investigation might normally suffice. In 
any event, circumspection will necessarily characterize 
proffers of testimony in return for this limited immunity: 
when a proffer is made there can never be any certainty 
that it will result in a grant of immunity — this is a fact of 
life the person seeking immunity must face. See United 
States v. Rothman, supra; United States v. DiMuro, supra. 
These factors °lp explain why the proffer made in the 
present case by Romano's experienced counsel was 
couched in terms so broad that the district court felt if 
served neither as a direct nor indirect source of subse- 
quent Department of Justice inquiry. [Slip Opinion at 9.] 

Turning next to the question of whether the Fifth Amendment 
afforded greater protection to the proffer made by Mr. Romano's 
attorney to the Senators, the court declared that the protection of 
the Fifth Amendment was coextensive with § 6002. The court noted 
that Mr. Romano was not compelled to make the proffer to the 
Senators. The court concluded: 

There is, therefore, no fifth amendment barrier to use of 
any hint the Government may have gleaned from the brief 
encounter that Romano's counsel voluntarily had with 
Senators Chiles and Weicker. [Slip Opinion at 10.] 

Finally, the court rejected Mr. Romano's assertion that the Dis- 
trict Court had erred in finding that the Government's case was 
not "tainted", that is, derived in some measure from the immu- 
nized testimony given to the subcommittee, but was instead derived 
from independent and legitimate sources. 



172 

On October 11, 1978, Chief Judge Caffrey issued an order treat- 
ing a letter filed by Mr. David Frank Goldberg on September 25, 
1978, as a motion for reduction of sentence and denying said 
motion. 

On December 18, 1978, Mr. Romano was ordered committed for 
a period of 3 years and 6 months. 

Status. — No further action has been taken. 

The August 11, 1978 decision of the Court of Appeals is printed 
in the ' 'Decisions" section of the report of Court Proceedings and 
Actions of Vital Interest to the Congress, Part 5, September 15, 

1978. 

United States ex rel Joseph v. Cannon 
No. 78-1618 (D.C. Cir.) 

Brief. — This suit was filed March 15, 1977, by a private citizen, 
Joel D. Joseph, pursuant to 31 U.S.C. §§ 231 and 232 (the False 
Claims Act), which allows a private citizen to file a claim on behalf 
of the United States against any person making a false claim for 
money upon the United States. Anyone convicted under Section 
231 shall pay and forfeit $2,000, plus double the amount of dam- 
ages the United States may have suffered as a result of the false 
claim, as well as the costs of the suit. Under Section 232, the 
relator is required to notify the Justice Department of the suit and 
the Justice Department is then allowed 60 days in which to take 
over the case. If an appearance is entered by the United States, the 
private citizen may be awarded fair and reasonable compensation, 
in amount not exceeding one-tenth of the amount recovered, for 
disclosure of information or evidence not in the possession of the 
United States when the suit was brought. If the case is not taken 
over by the United States, the relator may be awarded up to one- 
fourth of the amount recovered as compensation for his services. 

Defendant Howard W. Cannon is a U.S. Senator from Nevada. 
Chester B. Sobsey, Administrative Assistant to Senator Cannon, is 
also named as a defendant in the suit. 

The complaint alleges that from March of 1975 to November 
1976, defendant Sobsey worked extensively and exclusively on Sen- 
ator Cannon's re-election campaign or on related tasks not part of 
Senator Cannon's official duties, and that Senator Cannon know- 
ingly authorized and Sobsey knowingly accepted regular pay for 
services ostensibly performed as Senator Cannon's Administrative 
Assistant during this period, although such services "* * * were 
not performed or otherwise performed in a perfunctory or nominal 
manner." [Complaint at 3.] It is further alleged by the complaint 
that during this period "* * * and at other times * * *" Senator 
Cannon: 

had other members of his staff perform services to him 
and his family, which were not part of Senator Cannon's 
official legislative and representational duties, but were 
nevertheless paid with public funds. [Complaint at 3.] 

The relator's complaint contends that the alleged acts constitute 
violation of 31 U.S.C. §231. 



173 

On May 27, 1977, the Justice Department declined to enter an 
appearance on behalf of the United States. 

On June 7, 1977, defendants filed a motion to dismiss. 

On May 25, 1978, District Court Judge Bryant filed a memoran- 
dum and order granting the motion of defendants to dismiss the 
action. As to plaintiffs first claim, the court found that it had no 
jurisdiction under the terms of the False Claims Act, since that act 
denies jurisdiction over private false claims if the evidence or 
information on which the suit is based was already in the posses- 
sion of the Government. In the instant case, the information in 
question was already in the possession of the Government, since 
Senator Cannon had filed with the Secretary of the Senate and 
publicly disclosed that Mr. Sobsey was an aide authorized to re- 
ceive and distribute campaign contributions. 

In regard to the claim of fraud, Judge Bryant held that plaintiff 
had failed to state a claim upon which relief may be granted since 
plaintiff failed to point to one specific instance in which a member 
of Senator Cannon's personal staff was paid out of public income 
for personal tasks. 

Mr. Joseph filed a notice of appeal on May 26, 1978. 

Status. — The appeal is pending in the U.S. Court of Appeals for 
the District of Columbia Circuit. 

United States v. Hanna 

Criminal No. 77-00607 (D.D.C.) 

Brief. — On October 14, 1977, the United States filed an indict- 
ment against former U.S. Representative Richard T. Hanna. The 
indictment consisted of 40 separate counts, and charged Hanna 
with the violation of 6 separate U.S. statutes; 18 U.S.C. § 371 (con- 
spiracy to commit offense or to defraud United States); 18 U.S.C. 
§ 201(c) (1) and (2) (bribery of public officials and witnesses; 18 
U.S.C. § 201(g) (illegal gratuity); 22 U.S.C. §§612, 618 (Foreign 
Agent Registration Act); and 18 U.S.C. § 1341 (mail fraud). Also 
named as unindicted co-conspirators in the indictment were Tong 
Sun Park, a citizen of the Republic of Korea; Kim Hyung Wook, 
Director of the Korean Central Intelligence Agency between 1963 
and 1969, and Lee Hu Rak, Director of the Korean Central Intelli- 
gence Agency between 1970 and 1973. 

On December 8, 1977, defendant moved for dismissal of the in- 
dictment, for production of documents, for production of all elec- 
tronic overhearings or interceptions of his communications, and for 
severance of the counts of the indictment for the purpose of trial. 

On January 9, 1978, defendant moved to dismiss the indictment. 
The motion was heard, argued and taken under advisement. 

The motion to dismiss was denied on February 15, 1978. 

A plea agreement was filed on March 17, 1978. Defendant with- 
drew his plea of not guilty and pleaded guilty to count one. 

On April 24, 1978, defendant was sentenced to not less than 6 
months nor more than 30 months on count one. The remaining 
counts were dismissed. 

Mr. Hanna moved on July 27, 1978 for a reduction in his sen- 
tence, or alternatively, for modification thereof. The motion was 
denied on August 9, 1978. On August 21, 1978 Mr. Hanna filed a 



174 

second motion for reduction of sentence, or alternatively, for modi- 
fication of his sentence. 

Status. — No further action has been taken. 
United States v. Passman 

Criminal Case No. 78-30013-01 (W.D. La.) 

Brief. — Otto E. Passman, former U.S. Representative from Louisi- 
ana, was indicted on March 31, 1978, in U.S. District Court for the 
District of Columbia on one count of conspiracy (18 U.S.C. § 371), 
three counts of bribery (18 U.S.C. § 201 (c)(1)), and three counts of 
receiving illegal gratuities (18 U.S.C. § 201(g)). 

The indictment is primarily based upon alleged activities carried 
out by then-Congressman Passman and Tong Sun Park, named as 
an unindicted co-conspirator, in regard to the sale of U.S. rice to 
Korea under the Food-for-Peace Program (PL-480). 

On April 28, 1978, Mr. Passman was named defendant in a 
second indictment which charged him with tax evasion. 

Mr. Passman moved to consolidate the two indictments and on 
June 26, 1978 his motion was granted. Additionally, a motion by 
Mr. Passman to transfer the action against him to the United 
States District Court for the Western District of Louisiana was 
granted on July 14, 1978. 

On October 2, 1978, the District Court denied Mr. Passman's 
motion to dismiss, rejecting his assertions that the indictment 
violated his constitutional rights. Mr. Passman had asserted two 
bases for his motion to dismiss. First, he argued that the indict- 
ment should be dismissed because 18 U.S.C. § 201, applicable to all 
counts in the indictment, was overbroad and so general, vague 
and obscure as to deny him his due process rights under the Fifth 
Amendment and freedom of speech under the First Amendment. 

As a second allegation, Mr. Passman asserted that the denial of 
his motion to dismiss would put him in double jeopardy, subject 
him to the possible danger of a compromise verdict by the jury, 
and result in a multiplicitous indictment. 

Subsequently, on November 24, 1978, Mr. Passman submitted a 
new motion to dismiss asserting prosecutorial misconduct and 
overreaching. Mr. Passman further alleged that undue and un- 
justified delay, coupled with the resulting prejudice to him, have 
deprived him of constitutional rights including his Fifth Amend- 
ment due process rights. 

On December 14, 1978, the Government filed a motion for a 
court order that Mr. Passman had waived his right to raise 
Speech or Debate clause objections to the introduction at trial of 
all evidence which the Government had specifically indicated 
would be used at trial. 

Status. — The case is pending before the U.S. District Court for 
the Western District of Louisiana. 

The ruling of the District Court is printed in the ' 'Decision" 
section of this report at 321. 



175 

United States v. Diggs 
No. 78-2327 (D.C.Cir.) 

Brief.— On March 23, 1978, Charles C. Diggs, Jr., Representative 
for the 13th Congressional District of Michigan, was indicted in the 
U.S. District Court for the District of Columbia. Representative 
Diggs is charged with 14 counts of violating 18 U.S.C. § 1341 (Mail 
Fraud) and 21 counts of violating 18 U.S.C. § 1001 (False State- 
ment). 

18 U.S.C. § 1341 reads, in pertinent part: 

Whoever, having devised or intending to devise any 
scheme or artifice to defraud, or for obtaining money or 
property by means of false or fraudulent pretenses, repre- 
sentations, or promises * * * for the purpose of executing 
such scheme or artifice or attempting so to do, places in 
any post office or authorized depository for mail matter; 
any matter or thing whatever to be sent or delivered by 
the Post Office Department, or takes or receives there- 
from, any such matter or thing, or knowingly causes to be 
delivered by mail according to the direction thereon, or at 
the place at which it is directed to be delivered by the 
person to whom it is addressed, any such matter or thing, 
shall be fined not more than $1,000 or imprisoned not 
more than five years, or both. 

18 U.S.C. § 1001 provides the same penalties for anyone who 

in any matter within the jurisdiction of any department or 
agency of the United States knowingly and willfully falsi- 
fies, conceals or covers up by any trick, scheme, or device a 
material fact, or makes any false, fictitious or fraudulent 
statements or representations, or makes or uses any false 
writing or document knowing the same to contain any 
false, fictitious or fraudulent statement or entity * * * 

The indictment alleges that Representative Diggs: 

[D]id devise and intend to devise a scheme and artifice to 
defraud the United States of America, and to obtain 
money and property by false and fraudulent pretenses, 
representations and promises, which defendant Diggs 
knew would be and were false when made. 

Further allegations in the indictment state that Representative 
Diggs: 

[I]n order to pay for his personal, business, and House of 
Representatives expenses, would and did divert and cause 
to be diverted from the Treasury of the United States a 
sum in excess of one hundred and one thousand dollars 
($101,000.00) in the form of salary kickbacks from certain 
House of Representatives employees and payments to 
others on the House of Representatives payroll who per- 
formed no work for the House of Representatives. [United 
States v. Diggs Cr. No. 78-142 (D.D.C.) (Indictment at 2.)] 

On April 28, 1978, Representative Diggs filed a motion for a bill 
of particulars, a motion for discovery and inspection, and a motion 
to dismiss for selective prosecution counts 5 through 14 and 24 
through 35 of the indictment. In a memorandum in support of the 
motion to dismiss, Congressman Diggs asserted that although the 



176 

Justice Department was aware of allegations that other Members 
of Congress were involved in activities similar to those alleged 
against him, no prosecution was instigated against those other 
Members. 

The Government filed oppositions to each of the three motions 
on May 5, 1978. 

On May 9, 1978, defendant's motion to dismiss counts 5 through 
14 and 24 through 35 was heard and denied. 

The case was reassigned from Judge Waddy to Judge Gasch on 
June 9, 1978. 

On July 25, 1978, Judge Gasch filed the findings of the court for 
the issuing of subpoenas duces tecum to Robert V. Rota, Postmaster 
of the House of Representatives, Edmund L. Henshaw, Jr., Clerk of 
the House of Representatives, and Kenneth R. Harding, Sergeant 
at Arms of the House of Representatives, or their authorized repre- 
sentatives, and the subpoenas were issued on the same day. 

On September 26, 1978, the trial was begun. Congressman Diggs 
was found guilty on all counts on October 7, 1978. He was sen- 
tenced on November 20, 1978 to 3 years on each count, to run 
concurrently. 

On November 24, 1978, Representative Diggs filed a notice of 
appeal. 

Status. — The appeal is pending in the U.S. Court of Appeals for 
the District of Columbia Circuit. 

Community-Service Broadcasting of Mid-America, Inc. et al v. Fed- 
eral Communications Commission and United States 

No. 76-1081 (D.C. Cir.) 

Brief. — This petition for review of an order of the Federal Com- 
munications Commission (hereinafter "FCC") was filed in the U.S. 
Court of Appeals for the District of Columbia on January 26, 1976. 
The petition, which was filed by several noncommercial broadcast- 
ing stations, challenged the constitutionality of Section 399(b) of 
the Communications Act, 47 U.S.C. § 399(b) (Supp. V 1975), and the 
rules promulgated thereunder by the Federal Communications 
Commission, Report and Order, Docket 19861, 57 FCC 2d 19 (Dec. 
19, 1975). That section of the Communications Act and the imple- 
menting rules require, inter alia, all noncommercial radio and 
television stations which receive any Federal funding to record all 
broadcasts "in which any issue of public importance is discussed", 
to retain a copy of the recording for 60 days and provide copies at 
cost to any person requesting them. The petition was argued before 
Circuit Judges Wright and Leventhal and District Judge Gesell, 
sitting by designation, on January 19, 1977. 

On February 24, 1977, the case was remanded to the FCC for 
consideration of three questions: (1) What important or substantial 
Government interest is furthered by the recording requirement? (2) 
Is the governmental interest unrelated to suppression of free ex- 
pression? (3) Assuming the validity of the statute, are there any 
alternatives as to implementing regulations that would result in a 
less drastic burden? The FCC noted, in response to the first ques- 
tion, that the legislative purpose of the statute is unclear, but 
suggested that one purpose may be "to give taxpayers who provide 



177 

the bulk of financial support for these stations, a means for review- 
ing the stations' performance". The FCC also answered that the 
recording requirement of Section 399(b) was not intended to, nor 
does it suppress free expression, and that it was unaware of any 
less drastic means of preserving the programs broadcast. 

The Court of Appeals issued its opinion on September 15, 1977, in 
which it held Section 399(b) and the rules promulgated thereunder 
unconstitutional and vacated the FCC order in question. The court 
noted that Congress is responsible for appropriating funds for dis- 
tribution to noncommercial stations and that in doing so may take 
account of the extent to which the Corporation for Public Broad- 
casting is meeting the statutory mandate of "objectivity and bal- 
ance". However, this oversight function was not held by the court 
to encompass ' 'sporadic review by Congressmen or the FCC of the 
contents of particular programs." The avoidance of Congressional 
interference was seen as the purpose behind the system of appro- 
priations in this area, whereby Congress has no control over the 
ultimate distribution and use of funds once they are allocated. 
Section 399(b) was held to be a means of Government censorship of 
the specific contents of programs broadcast by noncommercial sta- 
tions and as such was held to be unconstitutional. 

The opinion stated that recording and access provisions might be 
permissible under some circumstances: 

This is not to say that recording and access provisions 
could not conceivably be grounded on any legitimate gov- 
ernmental objective. But given the absence of similar regu- 
lation of commercial stations, such alternative objectives 
cannot sustain the statute and regulations at issue here 
against a Fifth Amendment equal protection challenge. 
For the distinction between the requirements imposed on 
commercial and noncommercial stations is not even rele- 
vant to any legitimate government interests, see Kotch v. 
Board of River Port Pilot Comm'rs, 330 U.S. 420, 425-426 
(1961), let alone sufficiently supported to meet the strict 
scrutiny appropriate where First Amendment rights are 
implicated, see e.g., Chicago Police Department v. Mosley, 
supra, 408 U.S. at 101-102; NAACP v. Button, 371 U.S. 415, 
438 (1963); Mancuso v. Taft, 476 F.2d 187, 192-196 (1st Cir. 
1973). 

Thus the Commission's claim in its response to remand 
that "one purpose" of the statute is "to give taxpayers, 
who provide the bulk of financial support for these sta- 
tions, a means for reviewing the stations' performance" 
inevitably falters on equal protection grounds. For the fact 
is that public support is not limited to noncommercial 
stations; by providing and policing the exclusive channels 
and frequencies of commercial stations, the Government — 
and thus the taxpayers — provide a benefit to commercial 
stations which in all likelihood is many magnitudes larger 
than any benefits provided to noncommercial stations. If 
recording and access requirements are to be imposed on 
this basis, they must be applied to all stations. A similar 
conclusion must be reached with respect to any claim that 



178 

these provisions are justified as a means of facilitating the 
responses secured by the fairness doctrine. Since that doc- 
trine is equally applicable to commercial and noncommer- 
cial stations, see Accuracy in Media, Inc. v. FCC, supra, 
521 F.2d at 296, requirements predicated on compliance 
with it cannot constitutionally be imposed, as they have 
been here, only upon noncommercial stations. [Slip Opin- 
ion at 6-7 (footnotes omitted).] 

In conclusion, the Court of Appeals stated that it was unable to 
find any legitimate governmental interest served by Section 399(b) 
and the rules promulgated thereunder which does not at once fail 
on equal protection grounds. 

Circuit Judge Leventhal filed a dissenting opinion in which he 
stated that the case did not involve the classification of noncom- 
mercial, but rather, the classification of publicly funded stations, 
which he indicated was not necessarily an invidious classification. 
Considering the nub of the case to be the question of whether the 
recording requirement is disguised censorship or a wedge for cen- 
sorship, and answering that question negatively, Judge Leventhal 
stated: 

In my view, the court should give a provisional approval 
to the legislation subject to reconsideration in light of 
experience. If experience shows that this requirement 
leads to harassment or such intensive scrutiny of the non- 
commercial licensee as to be tantamount to censorship, or 
to veer strongly in that direction, then a regulation neu- 
tral on its face may be shown to be invalid in the light of 
experience. [Slip Opinion (dissent) at 5.] 

The FCC filed a petition for rehearing and suggestions for re- 
hearing en banc on October 13, 1977. On November 9, 1977, the 
case was ordered reheard en banc. 

The Public Broadcasting Service moved for leave to file a brief as 
an amicus curiae on December 19, 1977. 

Letters of consent to the filing of an amicus curiae memorandum 
of the Corporation for Public Broadcasting and the memorandum 
itself were filed on December 21, 1977. The brief urged that the 
court find the statute and the FCC order unconstitutional. 

U.S. Senator Robert P. Griffin of Michigan filed a motion for 
leave to file a memorandum as amicus curiae on December 21, 
1977. 

A clerk's order granting the motions of the Public Broadcasting 
Service and Senator Griffin to file briefs amici curiae and the 
briefs themselves were filed on December 29, 1977. Senator Grif- 
fin's brief supported the constitutionality of the statute and the 
FCC order. The Public Broadcasting Service's brief urged the court 
to find the statute and order unconstitutional. 

The Court of Appeals issued its opinion on August 25, 1978, again 
finding Section 399(b) unconstitutional and vacating the FCC order 
which promulgated rules and regulations implementing that stat- 
ute. The opinion of the court held Section 399(b) and the FCC 
regulations invalid under the Fifth Amendment because they deny 
petitioners the equal protection of the laws. The court declared 
that while a classification which is not invidious and does not 






179 

affect fundamental rights will normally withstand equal protection 
scrutiny so long as the classification is rationally related to a 
legitimate governmental interest, where fundamental rights are 
involved, stricter scrutiny is required and it must be shown that 
the classification is narrowly tailored to fit a substantial Govern- 
ment interest. The court found none of the purposes put forward to 
support the recording requirement to adequately justify treating 
commercial and noncommercial broadcasters differently as done by 
the statute and FCC rules. 

Circuit Judge Robinson filed an opinion concurring in part and 
concurring in the judgment in which he stated that there was no 
basis for a finding that the recording requirement reasonably relat- 
ed to any permissible governmental purpose and that no rational 
justification had been shown for the classification involved. 

Circuit Judge Leventhal, joined by Circuit Judge Tamm, filed a 
dissenting opinion, in which they expressed this view: 

Under the Public Broadcasting Act of 1967, Congress 
appropriates funds for the production of programs to be 
broadcast by noncommercial stations. Every program or 
series of programs of a controversial nature is required to 
maintain a stringent standard of ' 'strict adherence to ob- 
jectivity and balance." That standard is more rigorous 
than that applicable to licensees generally under the fair- 
ness doctrine, which provides a loose standard of general 
balance in a licensee's overall programming and has no 
requirement for individual programs. 

Congress reserved for itself the oversight responsibility 
of assuring, primarily through reports and review of ap- 
propriations, that federally funded programs conform to 
the strict objectivity and balance standard. This is a legiti- 
mate and substantial government interest. Construed in 
light of its purpose and context, the minimal audio taping 
requirement of Sec. 399(b) is a permissible auxiliary of this 
congressional responsibility. The oversight does not 
abridge First Amendment freedom. 

The Act does not apply to commercial stations, but this 
does not mark an invalid classification. There is no corre- 
sponding congressional interest in a taping requirement 
for commercial licensees, which do not broadcast programs 
funded under the Act. [Slip Opinion (dissent) at 2.] 

Circuit Judge MacKinnon, joined by Circuit Judge Robb, also 
filed a dissenting opinion in which he concluded that: 

[T]he statute is valid in its entirety, should be given its 
plain reading, and I would not issue an advisory opinion 
based essentially on a prophecy that beneficiaries of gov- 
ernment largess necessarily need fear pressures that 
would violate the statute and the Constitution. [Slip Opin- 
ion (dissent) at 9.] 

On September 22, 1978, the FCC filed a notice of appeal to the 
Supreme Court of the United States. 

On November 10, 1978, the FCC filed an application (A-446) 
with the Supreme Court for an extension of time within which to 



180 

docket appeal. The application was granted on November 15, 1978, 
and the time extended December 21, 1978. 

Status. — No further action has been taken. The time for appeal 
has expired. 

The opinion of the Court of Appeals of September 15, 1977 is 
printed in the "Decisions" section of the report of Court Proceed- 
ings and Actions of Vital Interest to the Congress, Part 5, Septem- 
ber 15, 1978. 

The opinion of the Court of Appeals on rehearing en banc is 
printed in the l 'Decisions" section of the report of Court Proceed- 
ings and Actions of Vital Interest to the Congress, Part 5, Septem- 
ber 15, 1978. 

Patterson v. Griffin 

Civil Action No. 78-71458 (E.D. Mich.) 

Brief. — L. Brooks Patterson, a candidate in the August 8, 1978 
primary election for Republican candidate for Senator from Michi- 
gan, brought this suit on June 13, 1978 in the United States Dis- 
trict Court for the Eastern District of Michigan. Named as defend- 
ant is Robert P. Griffin, United States Senator from Michigan. The 
complaint states that Senator Griffin has announced his intention 
to seek reelection and is also a candidate in the August 8, 1978 
primary. The suit is based on a "pamphlet or newsletter" sent 
under the franking privilege by Senator Griffin to "many and 
various" persons in the State of Michigan and which allegedly 
violates Senate guidelines regulating the number of pictures of a 
Senator and the number of times a Senator's name may appear in 
franked mail. The complaint asks for a temporary restraining 
order, and preliminary and permanent injunctions enjoining Sena- 
tor Griffin and his agents, servants, employees, attorneys and cam- 
paign committees from mailing any such pamphlet under authority 
of the frank until the Michigan general election of November 7, 
1978. Plaintiff also seeks disclosure and reimbursement to the 
Treasury by Senator Griffin for any public funds, facilities, serv- 
ices, personnel, or instrumentalities used for the newsletter. 

Senator Griffin filed a motion to dismiss or in the alternative for 
summary judgment on June 16, 1978. The memorandum submitted 
with the motion argued that the court has no jurisdiction to enter- 
tain any civil action concerning possible violation of the franking 
laws until a complaint has been filed with, and a decision rendered 
by, the Senate Select Committee on Ethics pursuant to 2 U.S.C. 
§ 502, which provides in part: 

(c) Not withstanding any provision of law, no court or 
administrative body in the United States or in any terri- 
tory thereof shall have jurisdiction to entertain any civil 
action of any character concerning or related to a violation 
of the franking laws or an abuse of the franking privilege 
by any person listed under subsection (a) of this section as 
entitled to send franked mail, until a complaint has been 
filed with the select committee and the committee has 
rendered a decision under subsection (b) of this section. 



181 

The memorandum also variously attacked plaintiffs prayers for 
relief as vague, indefinite and frivolous. 

Mr. Patterson filed an affidavit of bias on June 22, 1978, in 
which he asked Judge Feikens to disqualify himself. 

In a brief filed in opposition to defendant's motion to dismiss or 
for summary judgment, Mr. Patterson argued that exhaustion of 
administrative remedies was not required in this case since his 
interests would be irreparably harmed by the delay entailed in 
pursuing administrative relief, regardless of the outcome; and that 
summary judgment would be inappropriate, since genuine issues of 
fact were present. 

On June 26, 1978, the motions to disqualify the motion for a 
preliminary injunction, and the motion to dismiss were all heard 
and denied. 

On the same day, June 26, 1978, Mr. Patterson filed an amended 
complaint. In his amended complaint, Mr. Patterson asserted, in 
response to Senator Griffin's declaration that the court had no 
jurisdiction over the action until the Senate Select Committee on 
Ethics had acted, that he had filed a complaint with the Commit- 
tee, but he had received no response. He also asserted that he 
would be denied effective relief if he were required to look exclu- 
sively to the Select Committee. He further asserted that 2 U.S.C. 
§ 502 denies him his right to equal protection of the laws guaran- 
teed by the United States Constitution. 

On July 14, 1978, Judge Feikens issued an order denying Mr. 
Patterson's motion for a preliminary injunction and dismissed for 
lack of jurisdiction those parts of the complaint relating to an 
alleged violation of the Franking Act. Judge Feikens refused to 
dismiss that part of the action asserting the unconstitutionality of 
2 U.S.C. § 502. 

On August 15, 1978, Judge Feikens, in a supplemental order, 
noting that Mr. Patterson had failed to file briefs on the constitu- 
tionality question as the court had directed, dismissed that remain- 
ing claim. 

Status. — The time for appeal has expired. 

Littlejohn v. Talmadge 

Civil Action No. C78-1375A (N.D. Ga.) 

Brief. — Charles Littlejohn, a resident of Georgia, filed this action 
against U.S. Senator Herman Talmadge and the United States 
Senate in the United States District Court for the Northern Dis- 
trict of Georgia on August 15, 1978. 

Mr. Littlejohn, acting as his own attorney, asserts in a two count 
complaint that Senator Talmadge has engaged in certain illegal 
and unlawful financial dealings and that the Senate investigation 
of these activities is "self-serving and protective of its Members. 

Mr. Littlejohn seeks to: 

"enjoin said defendant Senate from further legislative acts 
in which the affairs of plaintiff are affected so long as 
defendant Talmadge is a sitting member of said Senate; 
enjoin Senator Talmadge from engaging in acts as a 
member of said Senate in any transaction in which the 



182 

affairs of plaintiff are affected; enjoin said defendant 
Senate from continuing and conducting aforesaid self-serv- 
ing investigation of said defendant Talmadge; and that 
this Honorable Court appoint an investigative body to con- 
duct a proper and unbiased investigation [of Senator Tal- 
madge]." [Littlejohn v. Talmadge (C78-1375A); complaint 
at 3-4.] 

Mr. Littlejohn also asks the court to award him: 

[A] pro-rata share of all aforesaid monies obtained in an 
illegal and unethical manner by defendant Talmadge, and 
pay same, with interest, to Plaintiff as his pro-rata share 
with all taxpayers of the United States; along with conse- 
quential damages of $10,001.00, to compensate said Plain- 
tiff for the corollary financial damages resulting from in- 
flation caused by the greater costs of the Federal Govern- 
ment and the Government of the State of Georgia result- 
ing from increased Senate budgets; property acquisition 
costs; State budgets; and legal and administrative costs 
occasioned by the illegal and unethical acts of said defend- 
ant Talmadge; and the failure of defendant Senate to con- 
trol same and to act accordingly and timely; and the 
mental anguish and suffering of Plaintiff occasioned by 
aforesaid improper acts and failures to control such acts. 
[Complaint at 4.] 

On October 3, 1978, Senator Talmadge filed a motion to dismiss 
the complaint on the ground that the facts alleged in the com- 
plaint fail to state a claim upon which relief can be granted, and 
that the court will not take cognizance of a case involving the 
conduct of an incumbent in the performance of official duties. 

On October 17, 1978, the United States Senate, by and through 
the U.S. Attorney for the Northern District of Georgia, moved to 
dismiss the complaint on the grounds that the court lacked juris- 
diction of the subject matter of the complaint. 

Status.— The case is pending in the District Court. 

United States v. Clark 

No. 78-207 (W.D. Pa.) 

Brief.— Frank M. Clark, former Congressman for the 25th Con- 
gressional District of Pennsylvania, was indicted by a Federal 
grand jury on September 5, 1978. The indictment, which was filed 
in the U.S. District Court for the Western District of Pennsylvania, 
charges Mr. Clark with illegal acts while he was a member of the 
U.S. House of Representatives. Mr. Clark was charged with nine 
counts of mail fraud (18 U.S.C. § 1341), one count of perjury before 
a grand jury (18 U.S.C. § 1623), and three counts of attempting to 
evade or defeat income tax (18 U.S.C. § 7201). 

The mail fraud counts are based upon allegations that Mr. Clark 
placed several persons on the payroll of the House of Representa- 
tives as members of his staff for the purpose of paying them for 
their work in maintaining, staffing and operating his campaign 
headquarters. Specifically, the counts relate to nine U.S. Treasury 



183 

checks sent by mail to the individuals who were allegedly fraudu- 
lently placed on the House payroll. 

The perjury count consists of an allegation that Mr. Clark, while 
appearing before a grand jury investigating his activities, denied 
that he had received any monies of any sort other than his Con- 
gressional salary and income from stocks he may have owned, 
when he knew that was not the case. 

On September 12, 1978, Mr. Clark filed a motion for a bill of 
particulars, which requested that the Government state the theory 
or theories which form the basis of its proof of the alleged addition- 
al taxable income, and, if based on specific items of income alleged- 
ly not included in his tax returns for the years 1972, 1973 and 1974, 
that the Government state the source of said income, the amounts 
allegedly paid, and the date of each alleged payment. 

On September 29, 1978, United States District Judge Snyder 
issued an order granting the motion for a bill of particulars inso- 
far as it requested the sources and amounts of the specific items 
of income allegedly not included in Mr. Clark's income tax re- 
turns for the years in question. In a brief opinion filed with the 
order, Judge Snyder noted that the Government had indicated to 
counsel for Mr. Clark, in a conference subsequent to the motion, 
that it was relying on the specific items theory. Since Mr. Clark 
was not made aware, from the face of the indictment, of the 
specific items which the Government intended to use to support 
its theory of income tax evasion, a bill of particulars should be 
filed specifying the specific items in each count of the indictment 
on which it will rely to prove the amount of additional income 
tax that was allegedly evaded and the source of those items. 
However, Judge Snyder held that it was not necessary for them to 
set forth the dates of the payment as it need not weave the 
information at its command into the fully integrated trial theory. 

Status. — The case is pending in the District Court. 
The District Court opinion of September 29, 1978, is printed in 
the "Decisions" section of this report at 335. 

United States v. Flood 

Cr. No. 78-543 (D.D.C.) and Cr. No. 78-561 (D.D.C.) 

Brief.— On September 5, 1978, an indictment was filed in the 
United States District Court for the Central District of California 
against Congressman Daniel J. Flood. The three-count indictment 
charges Congressman Flood with perjury before the U.S. District 
Court for the Central District of California and before a Federal 
grand jury (18 U.S.C. § 1623). 

The case was transferred to the U.S. District Court for the 
District of Columbia on October 18, 1978. 

On October 12, 1978, a 10-count indictment against Representa- 
tive Flood was filed in the United States District Court for the 
District of Columbia. In the indictment, he was charged with one 
count of conspiracy (18 U.S.C. §371) and nine counts of bribery 
and aiding and abetting bribery (18 U.S.C. §§ 201, 202). 

On October 18, 1978, the indictment which had been filed in 
California was transferred to the U.S. District Court for the Dis- 
trict of Columbia. 



184 

The two indictments were consolidated on October 23, 1978. 

Status. — The cases are pending in the U.S. District Court for the 
District of Columbia. 

United States v. Eilberg (New Case) 

Cr. No. 78-311 (E.D. Pa.) 

Brief. — On October 24, 1978, an indictment was filed in the 
United States District Court for the Eastern District of Pennsylva- 
nia, in which Joshua Eilberg, United States Representative from 
Pennsylvania was charged with a violation of 18 U.S.C. § 203(a). 
Under that section, it is illegal for any Member of Congress, except 
as provided by law, to receive directly or indirectly, or agree to 
receive, or ask, demand, solicit, or seek any compensation for any 
services rendered or to be rendered, either by himself or another, 
in relation to any proceeding, application, request for a ruling or 
other determination, contract, claim, controversy, charge, accusa- 
tion, arrest, or other particular matter in which the United States 
is a party or has a direct and substantial interest, before any 
department, agency, court-martial, officer, or any civil, military, or 
naval commission. 

The indictment specifically alleged that from approximately 
April 1975 to December 1977, Representative Eilberg, while he was 
a Member of Congress, unlawfully and knowingly, directly and 
indirectly received and agreed to receive compensation from the 
Hahnemann Medical College and Hospital of Philadelphia (herein- 
after "Hahnemann"), in violation of 18 U.S.C. § 203(a). The Govern- 
ment charged in the indictment that the alleged compensation was 
for services rendered and to be rendered by Congressman Eilberg, 
by members of law firms in which he was a partner and by another 
U.S. Representative from Pennsylvania, Daniel J. Flood. The al- 
leged services related a $14.5 million grant which Hahnemann was 
seeking from the Community Services Administration, an antipov- 
erty agency of the executive branch of the U.S. Government. 

On November 1, 1978, Congressman Eilberg entered a plea of not 
guilty. 

On December 4, 1978, Representative Eilberg moved for a change 
of venue, to dismiss the indictment, and for a bill of particulars. 

On December 18, 1978, the Government moved for production 
and inspection of telephone records. On December 27, 1978, the 
District Court granted the Government's motion and ordered a 
copy of the order granting the motion to be served on the Honor- 
able Edmund L. Henshaw, Clerk of the U.S. House of Representa- 
tives. 

Status. — The case is pending before the United States District 
Court for the Eastern District of Pennsylvania. 

In re Japanese Electronic Products Antitrust Litigation (Newly 

Reported Case) 

M.D.L. No. 189 (E.D.Pa.) 

Brief.— On July 27, 1978, during the course of this multidistrict 
antitrust action in the United States District Court for the Eastern 
District of Pennsylvania involving various American and Japanese 
corporations involved in the manufacture of electronic products, 



185 

two notices of taking the deposition of Bernard Nash, an attorney 
who had been retained by Zenith Radio Corporation, were filed. 
The first notice, which was filed by defendant Motorola, Inc., 
sought, inter alia, any documents relating to remarks concerning 
Motorola made by Senator Robert B. Morgan on the Senate floor 
on June 27, 1978; any documents relating to the identity of anyone 
who communicated with Senator Morgan or his staff concerning 
Motorola; all documents communicated to any member or em- 
ployee of the legislative or executive branch of Government, in- 
cluding but not limited to the Antitrust Subcommittee of the 
Senate Judiciary Committee, Senator Morgan or members of his 
staff, the Department of Justice, or the Securities Exchange Com- 
mission; and all documents relating to any communication relating 
to Motorola between Mr. Nash or his law firm and any member, 
employee, official or agency of the legislative or executive branch 
of the Government since January 1976. The second notice, which 
was filed by several corporate defendants, Toshiba, Matsushita, 
Hitachi, Sanyo and Sears, sought, inter alia, various types of docu- 
ments relating to communications with any governmental body. 
Subpoenas duces tecum were served on Mr. Nash on July 28, 1978. 
Mr. Nash moved for a protective order on August 2, 1978. 

The group of defendants who had served the second subpoena 
served a modified subpoena of narrowed scope on Mr. Nash on 
August 24, 1978, upon the instruction of the court at a pretrial 
conference held on August 16, 1978. 

On August 28, 1978, Senator Robert Morgan filed a motion to 
intervene as intervenor of right. Senator Morgan sought to inter- 
vene in order to assert that the subpoenas infringe upon the inves- 
tigatory authority of the Senate. To enforce the subpoenas, Senator 
Morgan's motion stated, would seriously inhibit the right of a 
Member of Congress to investigate coterminous legislative activity 
by deterring and chilling a citizen's willingness to provide informa- 
tion voluntarily or petition the Government for redress of griev- 
ances. 

On October 4, 1978, Senator Morgan filed an amended motion 
to intervene as intervenor of right and an affidavit in support of 
the motion. Senator Morgan asserted that information supplied to 
him by Mr. Nash was privileged by the Speech or Debate clause of 
the U.S. Constitution and that the subpoenas should be quashed 
insofar as they seek any testimony or correspondence by Mr. Nash 
with Senator Morgan or members of his staff. 

Senator Morgan's motion to intervene was granted on October 
4, 1978. 

Status. — The case is pending in the District Court. 



DECISIONS 



United States District Court for the Middle District of 

Pennsylvania 



No. 77-1137 Civil 

Samuel Rusack 

v. 

William H. Harsha, Stanley L. Bishop, P. J. 
Kanistros, Poli-Com, Inc. 



Memorandum and Order 

Plaintiff has filed this defamation action, asserting 
the court's diversity jurisdiction. Presently before the 
court are three defense motions. Defendant Bishop has 
moved to dismiss and to quash service of process on the 
grounds that the court lacks both subject matter juris- 
diction over the action and personal jurisdiction over 
him, that venue is improper, and that he was not prop- 
erly served. Defendants P. J. Kanistros and Poli-Com, 
Inc., have moved to dismiss and to quash service of 
process on the grounds that the court lacks personal 
jurisdiction over both the movants, that venue is im- 
proper, and that neither movant was properly served. 
Defendant Harsha, a member of the United States 
House of Representatives, who is named in Counts I 
through III of this ten-count complaint, has moved to 
dismiss or, in the alternative, for summary judgment, 
on the grounds that (1) the conduct upon which plaintiff 
bases his claim in the three counts, see infra, is legiti- 
mate legislative activity and as such is absolutely privi- 
leged under the Speech or Debate Clause of the United 

(189) 



190 

States Constitution; (2) the conduct complained of which 
involved reports to government officials regarding a 
supposed violation of federal law is constitutionally 
privileged; and (3) defendant Harsha's actions are privi- 
leged under the First Amendment because plaintiff is a 
public official and there has been no showing of actual 
malice under the standards as originally set out in New 
York Times Co. v. Sullivan, 376 U.S. 254 (1964). The 
motions of defendants Bishop, Poli-Com, Inc., and Kan- 
istros will be denied. Defendant Harsha's motion will be 
granted and he will be dismissed from the action. 

I. THE MOTIONS OF DEFENDANTS BISHOP, POLI-COM, INC., 
AND KANISTROS 

A. The Facts 

For the purpose of ruling on these two motions the 
court accepts as true the facts as set out in the com- 
plaint and the exhibits attached thereto. According to 
the complaint plaintiff is a resident of Harrisburg, Pa., 
and, at the time of the alleged defamation was a United 
States Navy civilian employee working as a Supervisory 
Contract Negotiator at the United States Navy Ships 
Parts Control Center (SPCC), Mechanicsburg, Pa. 1 De- 
fendant Bishop is a resident of Washington, D.C. De- 
fendant Kanistros is a resident of Ohio and is president 
of defendant Poli-Com, Inc., an Ohio corporation with 
its place of business in Ohio. It is alleged that the 
amount in controversy, exclusive of interest and costs, 
exceeds ten thousand ($10,000) dollars. 

On or about August 19, 1976, defendant Bishop com- 
posed and sent a letter to the Honorable Donald Rums- 
feld, then Secretary of Defense, which allegedly con- 
tained defamatory material directed at plaintiff. A cer- 
tified copy of that letter was sent to, among other 
places, SPCC at Mechanicsburg, Pa. It is alternatively 
alleged that defendant Bishop was acting both individ- 
ually and as an agent for defendants Poli-Com, Inc., and 
Kanistros when he wrote and published the letter. It is 
asserted that defendant Bishop, by "republication of the 



1 He is apparently still employed as such. 



191 

said defamatory matter, has blackened the reputation of 
plaintiff and has exposed Plaintiff to contempt and ridi- 
cule in Plaintiffs community." See doc. No. 1, fl 54. 

Defendant Bishop wrote another letter to Mr. Rums- 
feld on or about January 11, 1977, which also allegedly 
contained defamatory material directed at plaintiff. A 
copy of this letter was sent to "SPCC." See document 
No. 1, exhibit E. The court accepts this as being SPCC- 
Mechanicsburg, Pa. In writing and publishing this 
letter it is claimed that defendant Bishop was acting 
both individually and as agent for defendants Poli-Com, 
Inc. and Kanistros. 

Defendant Poli-Com, Inc., on or about July 21, 1977, 
sent a letter to the Honorable Neal Smith, then Chair- 
man of the Small Business Committee, United States 
House of Representatives. This letter was signed by de- 
fendant Kanistros as president of Poli-Com, Inc. It is 
alleged that this letter also contained defamatory mate- 
rial directed at plaintiff. It is stated in the complaint 
that copies of this letter were sent to the persons 
"therein denoted." But there is nothing in the letter to 
indicate that a copy was sent to Pennsylvania or any- 
where else. Nevertheless, it is alleged that defendant 
Poli-Com, Inc. "by republication of the said defamatory 
matter has blackened the reputation of Plaintiff and 
has exposed Plaintiff to contempt and ridicule in Plain- 
tiffs community. u See Doc. No. 1, fl 76. Plaintiff also 
claims that defendant Kanistros, by writing and signing 
this July 21st letter, was acting in his own interest and 
that this was not authorized by Poli-Com, Inc. 

Lastly, it is asserted that defendants Bishop, Kanis- 
tros, and Poli-Com, Inc. all conspired to deprive plaintiff 
of his good name and for the purpose of acquiring gov- 
ernment contracts for Poli-Com, Inc. Plaintiff also con- 
tends that the allegedly defamatory statements made by 
defendant Harsha, see infra, were derived from the 
hereinbefore-mentioned letters and from other oral and 
written communications made to defendant Harsha. 
There are no allegations that any of the latter commu- 
nications took place in Pennsylvania. 



192 
B. Discussion Regarding Defendant Bishop's Motion 

As stated supra, defendant Bishop has moved to dis- 
miss the complaint and quash service of process on the 
grounds that the court lacks both subject matter juris- 
diction over the action and personal jurisdiction over 
him, that he was not properly served, and that venue is 
improper. As to the lack of subject matter jurisdiction, 
although it is not clear, it seems from movant's brief 
that this argument is not being pursued. 2 Furthermore, 
the allegations of the complaint regarding subject 
matter jurisdiction have not been challenged. Hence, 
the court may permit plaintiff to rest on those allega- 
tions. See Jaconski v. Avison Corp., 359 F.2d 931, 934 
(3rd Cir. 1966). They indicate that the requirements of 
28 U.S.C. § 1332 (Diversity of citizenship; amount in 
controversy; costs) have been met and, therefore, this 
court has jurisdiction over the subject matter. In addi- 
tion, in determining whether the allegation of jurisdic- 
tional amount is sufficient to grant the court subject 
matter jurisdiction, the test is whether the allegation is 
made in good faith, i.e., the action will not be dismissed 
unless it appears to a legal certainty that the jurisdic- 
tional amount cannot be met. See Davis v. Shultz, 453 
F.2d 497 (3rd Cir. 1971); Jaconski, supra, 359, F.2d at 
934-935. I believe the allegations of the complaint meet 

that test. 

Turning to the question of personal jurisdiction, the 
power of a federal court which is entertaining a suit 
based on diversity of citizenship to assert in personam 
jurisdiction over a nonresident or out-of-state defendant 
depends on two factors, first, the law of the state in 
which the federal court sits must confer in personam 
jurisdiction over the out-of-state defendant and second- 
ly, if it does, the exercise of this in personam jurisdic- 
tion must not violate the due process requirements of 
the United States Constitution. See Hicks v. Kawaski 



2 The court received very little help from the briefs submitted by 
the parties in regard to the motions by defendants Bishop, Kanis- 
tros, and Poli-Com, Inc. Any future motions must be supported and 
opposed by competent briefs, i.e., briefs which cite appropriate legal 
precedent and which evidence some research and understanding of 
the subject area. 



193 

Heavy Industries, Civil No. 76-1373 (M.D. Pa. June 15, 
1978); George Transport and Rigging Co., Inc. v. Interna- 
tional Publications Equipment Corporation, 425 F. Supp. 
1351 (E.D. Pa. 1977). Plaintiff has the burden of plead- 
ing and proving jurisdiction. See Kenyatta v. Kelley, 430 
F. Supp. 1328 (E.D. Pa. 1977). 

Plaintiff relies on two sections of the old Pennsylva- 
nia Long Arm Statute, 42 Pa. Cons. Stat. § 8301 et seq., 3 
as the basis for assertion of personal jurisdiction over 
defendant under Pennsylvania law, sepciflcally §§ 8303 
and 8305. Section 8305 provided: 

Causing Harm by Individuals 

Any nonresident of this Commonwealth who, acting 
outside of this Commonwealth, individually, under 
or through a fictitious business name, or through 
an agent, servant, or employee, shall have caused 
any harm within this Commonwealth on or after 
August 30, 1970, shall be subject to service of proc- 
ess in any civil action or proceeding instituted in 
the courts of this Commonwealth arising out of or 
by reason of any such conduct. Service of process in 
any such civil action or proceeding shall be effected 
through the Department of State as provided in 
this chapter. 4 

Defendant Bishop acted outside the Commonwealth of 
Pennsylvania when he sent the allegedly defamatory 
letters to Mr. Donald Rumsfeld. He was also acting 
outside the Commonwealth when he sent copies to 
SPCC, Mechanicsburg, Pa. It is claimed that the publi- 



3 This long arm statute was repealed by the Judiciary Act of 
1976, P.L. 586, N. 582. Pa. Stat. Ann. tit. 42 § 5301 et seq. (Purdon, 
Supp. 1977). However, this new act did not go into effect until on or 
about June 27, 1978. 

4 The new act provides that a Commonwealth tribunal may exer- 
cise jurisdiction over a person who has caused harm or tortious 
injury in this Commonwealth by an act or omission outside the 
Commonwealth. It also provides that jurisdiction of the Common- 
wealth may, where the individual is not present or domiciled in the 
Commonwealth when process is served and has not consented to 
process, be exercised over the individual to the fullest extent per- 
mitted by the United States Constitution. Pa. Stat. Ann. tit. 42 
§ 5322 (Purdon, Supp. 1977). 



194 

cation of the alleged defamatory material caused plain- 
tiff harm in his Pennsylvania community. 5 Therefore, in 
personam jurisdiction is proper under the old Pennsyl- 
vania long arm statute. Cf Kurtz v. Draur, 434 F. Supp. 
958 (E.D. Pa. 1977). 6 

As to the constitutional question, i.e., whether the 
assertion of in personam jurisdiction here offends the 
due process clause, since defendant is a nonresident and 
nondomiciliary of Pennsylvania who was not present in 
the state when served and who has not consented to 
suit, the constitutional standard to be applied is the 
"minimum contacts" test which was first set out by the 
United States Supreme Court in International Shoe Co. 
v. Washington, 326 U.S. 310 (1945). Due process requires 
that the defendant have "certain minimum contacts 
with (the forum state) such that the maintenance of the 
suit does not offend 'traditional notions of fair play and 
substantial justice'. " International Shoe Co. v. Washing- 
ton, supra at 316, quoting Milliken v. Meyer, 311 U.S. 
457 (1940). 

The "minimum contacts" test does not allow for me- 
chanical application. Also, since International Shoe in- 
volved the issue of under what circumstances a state 
could assert personal jurisdiction over an out-of-state 
corporation and since many of the subsequent cases 
dealt with a commercial setting, it is somewhat difficult 
to apply the reasoning of many of the cases considering 
the "minimum contacts" test to the case currently 
before the court. Nevertheless, the "minimum contacts" 
test is the standard to be applied here. See Kulko v. 
Superior Court of California, 436 U.S. 84 (1978). 

Important factors in determining whether this test 
has been met are the quality of the contacts between 
the defendant and the forum state, see McGee v. Inter- 
national Life Insurance Co., 355 U.S. 220 (1970), wheth- 
er the cause of action flows from the contact or con- 
tacts, and whether the defendant has purposefully 

5 This is a different situation from that where harm is caused 
outside the State and residual effects are felt inside the State. 

6 Also, since I find that personal jurisdiction here is constitution- 
ally permissible, see infra, in personam jurisdiction is proper under 
the new Pennsylvania long arm statute. See n. 3, supra. 



195 

availed himself of the privilege of conducting activities 
in the forum state. See Hanson v. Denckla, 357 U.S. 235 
(1958); Scheldt v. Young, 389 F.2d 58 (3rd Cir. 1968). 
Also, where a defendant's actions outside the state have 
caused effects inside the forum state, an important con- 
sideration, albeit not controlling, is whether these ef- 
fects within the state were, or should have been, fore- 
seeable. Cf. McBreen v. Beech Aircraft Corp., 543 F.2d 26 
(7th Cir. 1976). Lastly, although not binding on the 
court, I believe that the American Law Institute's Re- 
statement (Second) of Conflicts § 37 (1971), quoted in 
Kulko, supra at 96, states a proposition which I believe 
is helpful in attempting to frame the correct analytical 
framework. Section 37, inter alia, provides: 

A state has power to exercise judicial jurisdiction 
over an individual who causes effects in the state 
by an act done elsewhere with respect to any cause 
of action arising from these effects unless the 
nature of the effects and the individual's relation- 
ship to the state make the exercise of such jurisdic- 
tion unreasonable. 

With all the above considerations in mind, I turn now 
to the facts of this case. 7 

As stated supra, it is alleged that defendant Bishop 
wrote letters containing defamatory material directed 
at plaintiff, that defendant Bishop mailed copies of 
these letters to plaintiffs place of employment at Me- 
chanicsburg, Pa. and that these letters caused harm to 
plaintiff within Pennsylvania. This is the extent of de- 
fendant's connection to the state of Pennsylvania and, 
although it is not overwhelming, 8 I believe that it is 



7 Movant has not advanced any argument that because this is a 
defamation action and, hence, the first amendment may be impli- 
cated, that different considerations of personal jurisdiction should 
be taken into account. See generally 4 Wright and Miller, Federal 
Practice and Procedure, § 1073 (1969). Given that fact, plus the fact 
that we are not dealing with a publication by a newspaper or 
magazine or the like, I do not think that a discussion of the First 
Amendment vis-a-vis personal jurisdiction is called for or that this 
case warrants a different analytical framework than set out above. 

8 The fact that the contacts are not extensive is not surprising 
given that this is a defamation action against an out-of-State de- 
Footnotes continued on next page 



196 

sufficient to satisfy the due process requirements of the 
United States Constitution. First, defendant's connec- 
tion to the state is based upon actions from which plain- 
tiffs claim arose. Secondly, I believe it is foreseeable 
that if one defames another it will cause harm to that 
other person within his community, especially when 
copies of the defamatory material are sent to that com- 
munity. And by sending those copies defendant Bishop 
has, in a sense, purposefully availed himself of the op- 
portunity of conducting an activity in the state of Penn- 
sylvania. 9 Furthermore, Pennsylvania has an interest in 
protecting its citizens from harm. Lastly, although 
much of the evidence regarding whether there has been 
a tort will be documentary, the evidence concerning 
whether plaintiff has been injured within his communi- 
ty may, if this action proceeds to trial, involve testimo- 
ny by Pennsylvania area residents. I believe that on 
balance, given all the factors present, it is neither in- 
equitable nor unreasonable to require that defendant 
Bishop appear here for the purposes of this action. 

The two remaining issues in this motion are whether 
process was correctly served and whether venue is 
proper. As to service of process, 10 rule 4 of the Federal 
Rules of Civil Procedure permits service to be made 
here in accordance with the state law in existence at 
the time service was made. See 4 Wright and Miller, 
Federal Practice and Procedure, § 1112 (1969). Service 
was made on or about December 19, 1977. The applica- 
ble Pennsylvania statute at that time was the old Penn- 
sylvania long arm statute, specifically 42 Pa. Cons. Stat. 
§ 8307. It appears that the requirements of that section 



Footnotes continued from last page 

fendant. Such action would not ordinarily carry with it an ex- 
tended connection between the defendant and the forum State. 

9 This is different from the situation presented in McBreen v. 
Beech Aircraft Corp., 543 F.2d 26 (7th Cir. 1976), where the only 
contact between the forum State and the defendant was his answer 
to an unsolicited phone call from a reporter working for a maga- 
zine which, unbeknownst to defendant, was located in the forum 
State. The answers were subsequently published in the forum 
State. 

10 The service of process rules do not affect jurisdiction or venue. 
See Fed. R. Civ. P. 82. 



197 

have been met, see document No. 2, U.S. Marshals Serv- 
ice, Process Receipt and Return, filed December 27, 
1977, and that, therefore, service of process has been 
correctly effectuated. 

As to venue, although counsel on both sides have 
been arguing in their briefs as to whether the claim 
arose here, the simple fact is that since this action 
appears to be based solely on diversity jurisdiction, 
venue is proper because plaintiffs unchallenged com- 
plaint alleges that he resides in this court's district. See 
28 U.S.C. § 1391(a). Defendant Bishop's motion will be 
denied. 

C. Discussion Regarding the Motion of Defendants 
Kanistros and Poli-Com, Inc. 

Defendants Poli-Com, Inc. and Kanistros do not dis- 
pute that Mr. Bishop was acting as their agent when he 
wrote the letters and mailed copies to Pennsylvania. 
There is the added allegation as to these two defendants 
that the letter sent to Mr. Smith caused plaintiff harm 
in his community. As to defendant Kanistros, the same 
analysis as applied above with Mr. Bishop's motion ap- 
plies here and personal jurisdiction is proper. As to 
defendant Poli-Com, Inc., Section 8309(b) of the old 
Pennsylvania long arm statute makes the statutory 
reach with out-of-state corporations in regard to person- 
al jurisdiction coextensive with the constitutional re- 
quirements of due process. 11 Hence, the constitutional 
analysis as applied to Mr. Bishop's motion applies here 
and personal jurisdiction is properly asserted over de- 
fendant Poli-Com, Inc. Furthermore, it appears that 
service of process has been properly effectuated as to 
both these defendants, see document No. 2, U.S. Mar- 
shals Service Process Receipt and Return, filed Decem- 
ber 27, 1977, and that venue is proper, see 28 U.S.C. 
§ 1391(a). These motions will similarly be denied. 






The new long arm statute does not change this. 



198 
II. DEFENDANT HARSHAS MOTION 

A. The Facts 

Rule 56(e) of the Federal Rules of Civil Procedure 
provides in pertinent part: 

When a motion for summary judgment is made and 
supported as provided in this rule, an adverse party 
may not rest upon the mere allegations or denials of 
his pleading, but his response by affidavits or as 
otherwise provided in this rule, must set forth spe- 
cific facts showing that there is a genuine issue for 
trial. If he does not so respond, summary judgment, 
if appropriate, shall be entered against him. (em- 
phasis added) 

In support of his motion for summary judgment defend- 
ant Harsha submitted his own affidavit, the affidavit of 
the Clerk of the United States House of Representa- 
tives, plus numerous exhibits. Part of defendant Har- 
sha's affidavit controverts some of the most pertinent 
and important allegations of the complaint, see infra. 
Plaintiff originally did not submit any affidavits or 
other material, besides his brief, in opposing the motion. 
However, after defendant, in his reply brief, pointed out 
plaintiffs obligation under the summary judgment rule, 
an affidavit of plaintiff Rusack along with other mate- 
rial was submitted by plaintiff. The court will consider 
this material as if it were submitted with the opposition 
brief. But, in general, this material, including the affi- 
davit of Mr. Rusack, does not controvert the relevant 
portions of Mr. Harsha's affidavit and the other sup- 
porting documents. Consistent with the proper proce- 
dure for ruling on a summary judgment motion, the 
court accepts as true facts alleged in those parts of the 
complaint which are uncontroverted by the movant, 
facts alleged in plaintiffs affidavit and in his documents 
submitted in opposition to the motion, and those parts 
of the material submitted in support of the motion, 
particularly the affidavit of defendant Harsha, which 
are uncontroverted by plaintiff. 

According to plaintiffs affidavit, he is a Supervisory 
Contract Negotiator (formerly entitled Supervisory Pro- 
curement Agent) at the SPCC. His authority is derived 
from the Armed Forces Procurement Regulations, spe- 
cifically 32 C.F.R. 1-400 et seq. He is one of eleven 



199 

individuals who have buying and contracting officer au- 
thority at the SPCC. His duties include solicitations and 
requests for proposals. Furthermore, as a contracting 
officer at a purchasing office such as the SPCC at Me- 
chanicsburg, 12 he is authorized to enter into contracts in 
the name of and on behalf of the United States Govern- 
ment, by, inter alia, formal advertising and negotiating. 
See 32 C.F.R. 1-402. There is a dispute as to whether, 
after a contract has been entered into, plaintiff becomes 
involved with the administration of the contract. Plain- 
tiff states he has authority regarding administration of 
contracts. 

Defendant Harsha is a Representative in the United 
States House of Representatives from the Sixth Con- 
gressional District of Ohio. He is the ranking minority 
member (Republican) of the House Public Works Com- 
mittee. He is involved with, and has a particular con- 
cern in regard to, the spending policies of the United 
States Government. See document No. 16, affidavit of 
William Harsha, p. 204. In July of 1977, Mr. Harsha 
was contacted by Mr. Bishop 13 involving "military pro- 
curement irregularities and taxpayer waste.' ' See affida- 
vi t of W illiam Harsha, id., at p. 5. 14 Mr. Bishop present- 

12 Movant's brief asserts that the SPCC is a purchasing office. 
This assertion is borne out by some of the accompanying material, 
see, for example, document 16, exhibit 16. Plaintiff does not dispute 
that SPCC Mechanicsburg is a purchasing office. 

13 According to plaintiff Rusack's affidavit, Mr. Bishop is a paid 
representative of defendant Poli-Com, Inc. 

14 Mr. Harsha first met Mr. Bishop in 1969, after being advised 
that Mr. Bishop was knowledgeable regarding Department of De- 
fense procurement practices and had been an editor of a newsletter 
dealing with military procurement. The outcome of this meeting 
was that Mr. Bishop presented Mr. Harsha with material dealing 
with procurement abuse or irregularity. This material was re- 
viewed by Mr. Harsha's staff and was then presented to the House 
in the form of a speech which Mr. Harsha caused to be inserted in 
the Congressional Record of June 4, 1969. It appears from the 
material placed in the Congressional Record of August 3, 1977, that 
Mr. Kanistros was also involved in the dispute in 1969. He had 
filed a complaint with the General Accounting Office (GAO) re- 
garding the award by the Air Force of a particular contract and 
alleging that his company, the low bidder, had improperly not been 
given the contract. Apparently the GAO agreed that Mr. Kanistros' 
firm should have been awarded the contract. See document 16, 
exhibits 1, 10, and 11. 



37-14H O - 79 - I A 



200 

ed Mr. Harsha with material which, inter alia, dealt 
with plaintiff Rusack and his involvement with a partic- 
ular contract and award. The material was reviewed by 
a member of Mr. Harsha's staff who then forwarded a 
prepared speech to the Congressman, who reviewed it 
and approved it for delivery and publication in the Con- 
gressional Record of August 3, 1977. It is this speech 
and its August 3rd publication in the Congressional 
Record which forms the basis of Count I of the com- 
plaint. It is alleged that the August 3rd speech con- 
tained defamatory material directed at plaintiff, specifi- 
cally that it charged plaintiff with dishonest and illegal 
conduct, fraudulent and unethical practices, and collu- 
sion and conspiracy to defraud. 

After the speech, by letter dated August 9, 1977, see 
document No. 16, exhibit 17, Mr. Harsha wrote a letter 
to the Commanding Officer, Admiral T. J. Allhouse, at 
the SPCC in Mechanicsburg, requesting the underlying 
contract files and other material concerning the award 
which was part of the basis of the August 3rd speech. 
Admiral Allhouse responded to this request on August 
22, 1977, by forwarding to Mr. Harsha a large amount 
of material. Mr. Harsha made this material available to 
Mr. Bishop in order for the latter to determine whether 
it was responsive to the August 9th request. Mr. Bishop 
determined that the material was not fully responsive. 
On August 31st, Mr. Harsha wrote another letter to 
Admiral Allhouse wherein he again requested certain 
material and also made numerous statements. It is this 
letter that forms the basis of Count III of the complaint. 
It is alleged that the letter contained defamatory mate- 
rial directed at plaintiff in that it charged him with 
dishonest and illegal conduct, fraudulent and unethical 
practices, and collusion and conspiracy to defraud. De- 
fendant Harsha states that neither he nor his office 
distributed this letter to the general public. This is not 
controverted. 

The SPCC responded to this second request by for- 
warding additional information to Mr. Harsha. All the 
material was again analyzed with Mr. Bishop's help. 
Mr. Harsha states in his affidavit that although he still 



201 

felt the material was not fully responsive, he believed 
that it confirmed the allegations contained in his 
August 3rd speech. He also believed that further re- 
quests from SPCC would not be fruitful. Once again Mr. 
Bishop presented his analysis of the material to a 
member of Mr. Harsha's staff who edited it and present- 
ed it to the Congressman. Mr. Harsha made final edito- 
rial changes and on Nov. 22, 1977, "the analysis in 
speech form was presented to the Clerk of the House for 
insertion in the Congressional Record by unanimous 
consent." 15 See document 16, exhibit No. 1 affidavit of 
William Harsha. It is this "speech" which is the basis of 
Count II in that, once again, it is averred that it con- 
tained defamatory material directed at plaintiff. 

The complaint charges further that Congressman 
Harsha subsequent to placing the two speeches in the 
Congressional Record, maliciously distributed and 
caused to be republished the text of the speeches. See 
document No. 1, flfllO & 22. Defendant Harsha states 
that on November 30, 1977, he transmitted copies of his 
correspondence with the SPCC and their responses 
along with copies of the two Congressional Records con- 
taining the speeches referred to above to the United 
States Attorney for the District of Columbia, the United 
States Attorney General, and to the Office of the Secre- 
tary of Defense. These transmittals were marked secret 
and were not generally circulated. Other than that 
transmittal and the ordinary way in which the Congres- 
sional Record is circulated, 16 defendant Harsha denies 



15 Apparently only the House as a whole can authorize the publi- 
cation of a speech not actually delivered on the floor. See Rule 
XXIV of the Rules of the House of Representatives, § 929, docu- 
ment 16, exhibit 3. Although it is not completely clear, it appears 
to the court that the speech of August 31st was also not actually 
delivered on the floor of the House. 

16 The printing and distribution of the Congressional Record is 
basically controlled by statute. See 44 U.S.C. § 901 et seq., and by 
House and Senate Rules and by a Joint Committee on Printing, 
composed of House and Senate Members. See document No. Hi. 
exhibits 3 and 13. It appears from 44 U.S.C.A. §906 (Supp. 1978) 
that each Member of the House of Representatives gets 40 copies, 
34 of which may only be transferred to public agencies and institu- 
tions. Congressman Harsha states that he receives six copies, three 

Footnotes continued on next page 



202 

in his affidavit that he republished or distributed the 
text of the two speeches contained in the Congressional 
Record. Plaintiff does not controvert this, except in the 
complaint. As stated supra, plaintiff may not rest on the 
allegations of the complaint when a summary judgment 
motion is properly supported, such as the one presently 
before the court. The court accepts for the purpose of 
this motion the fact that there has been no republica- 
tion of the speeches contained in the Congressional Rec- 
ords of August 31, 1977, and November 22, 1977, except 
as detailed by defendant Harsha. 17 

DISCUSSION 

The behavior upon which the complaint is based can 
be divided into three categories: (1) the insertion of the 
two speeches into the Congressional Record and the gen- 
eral distribution of those Congressional Records; (2) the 
August 31, 1977 letter to Admiral Allhouse; and (3) the 
forwarding by defendant Harsha of the copies of the 
two Congressional Records and copies of the correspond- 
ence between himself and the SPCC to the United 



Footnotes continued from last page 

of which he distributes among his staff in conjunction with the 
performance of their official duties. Furthermore, he supplies the 
Public Printer with a list of 30 people or organizations which 
receive copies of all the Congressional Records. The Congressional 
Record is also supplied to numerous people and organizations and 
it may be sold by the Public Printer. 

17 Plaintiff requests that this court not render a decision on this 
motion prior to his having an opportunity to engage in further 
discovery and to depose defendant Harsha regarding the issue of 
republication. Even in an ordinary action, one not involving Legis- 
lative Immunity or the First Amendment, I would not be inclined 
to grant such a request where a plaintiff has nothing upon which 
he can controvert an affidavit supporting a summary judgment 
motion. In the context of this motion the request is particularly 
inappropriate. First, it has been clearly stated that the Speech or 
Debate clause, see infra, protects Congressmen both from the possi- 
ble consequences of litigation itself and from the burden of defend- 
ing themselves. See Dombrowski v. Eastland, 387 U.S. 82 (1967). 
Secondly, when an action involves the First Amendment, the court 
should be careful that it does not needlessly create a situation 
which could have a chilling effect on the exercise of rights under 
that amendment. Granting plaintiffs request could have such an 
effect. 



203 

States Attorney General, the United States Attorney for 
the District of Columbia, and the Office of the Secretary 
of Defense. Summary judgment is sought on the 
grounds: (1) that all the activity is absolutely privileged 
under the Speech or Debate Clause; (2) that reports of 
alleged criminal behavior to appropriate executive offi- 
cials is constitutionally privileged and (3) that criticism 
of plaintiff Rusack is privileged under the First Amend- 
ment because the plaintiff is a public official and the 
record establishes that there is no "New York Times 
malice/' See infra. I will analyze each of the categories 
of behavior under each of the grounds asserted as a 
basis for summary judgment. 

A. Legislative Immunity 

Article 1, Section 6, Clause 1 of the United States 
Constitution, commonly referred to as the Speech or 
Debate Clause (hereinafter the Clause) states in perti- 
nent part: 

" * * * Senators and Representatives * * * for any 
Speech or Debate in either House * * * shall not be 
questioned in any other Place/ ' 

The purpose of this Clause is to insure that Congress 
is able to perform its legislative functions independently 
and without fear of reprisal or intimidation. See East- 
land v. United States Servicemen's Fund, 421 U.S. 491 
(1975). Furthermore, although not necessarily borne out 
by all the cases, it is often stated that the Clause is to 
be read broadly to effectuate its purposes. See United 
States v. Johnson, 383 U.S. 169, 180 (1966). When the 
United States Supreme Court first dealt with a chal- 
lenge to this Clause, it said when discussing to what 
behavior the Clause applies: 

"In short to things generally done in a session of 
the House by one of its members to the business 
before it." 

See Kilbourn v. Thompson, 103 U.S. 168, 204 (1880). 
Consistent with this, the Supreme Court has held that 
the standard to be met when determining whether the 
actions of a Congressman are encompassed by the 



204 

Clause is whether those actions are within the "sphere 
of legitimate legislative activity." See Eastland v. 
United States Servicemen's Fund, 421 U.S. 491, 501 
(1975) citing Doe v. McMillan, 412 U.S. 306, 312-313 
(1973); United States v. Brewster, 408 U.S. 501, 516 (1972) 
and others. If the actions do fall within such sphere, 
they are absolutely privileged and the Congressman 
may "not be questioned in any other Place," including 
this court in a civil action. 

Plaintiff concedes that defendant Harsha's speeches 
and their publication in the Congressional Record are 
activities which are absolutely privileged and protected 
by the Clause, see document No. 24, p. 3. 18 

The August 31, 1977 letter to Admiral Allhouse is 
also behavior which is encompassed by the Clause. It 
has long been held that investigation by a Congressman 
regarding issues over which legislation may be had is 
legitimate legislative activity and, therefore, protected 
by the Speech or Debate Clause. See Eastland v. United 
States Servicemen's Fund, 421 U.S. 491, 504 (1975); Doe 
v. McMillan, 412 U.S. 306 (1973); Watkins v. United 
States, 354 U.S. 178 (1957); McGram v. Daugherty, 273 
U.S. 135 (1927); McSurely v. McClellan, 553 F.2d 1277, 
1286-8 (D.C. Cir. En Banc 1976); writ of cert, dismissed 
as improvidently granted 46 U.S.L.W. 4878 (June 26, 
1978). 19 The power over appropriations and expenditures 
is at the heart of the business of Congress. Article 1, 
Section 8, Clause 13 of the United States Constitution 
specifically gives Congress power over the maintenance 



18 1 agree that these actions are absolutely privileged. Making a 
speech and/or following the procedures for submission of the 
speech for publication in the Congressional Record with all that 
generally implies are actions normally done in a session of the 
House by its Members, constitute "legitimate legislative activity" 
and as such are absolutely privileged under the clause. See Doe v. 
McMillan, 412 U.S. 306 (1973); Doe v. McMillan, 566 F.2d 713 (D.C. 
Cir. 1977). The fact that the speeches may have contained defam- 
atory material directed at plaintiff does not affect the privilege. See 
Doe v. McMillan, supra at 312-313. 

19 In Hutchinson v. Proxmire, 579 F.2d 1027 (7th Cir. 1978), the 
parties admitted that the investigative actions by Senator Prox- 
mire or his aides aimed at gathering information on public spend- 
ing from administrative agencies was behavior encompassed by the 
Speech or Debate clause. 



205 

of the Navy. Knowing how the Navy spends the money 
allotted to it by Congress is essential if Congress is 
going to be able to exercise its power with any compe- 
tency. Defendant Harsha's letter to Admiral Allhouse 
was an attempt to get needed information, and as such, 
it must be afforded the protection of the Clause. 20 

As to the forwarding of the copy of the letter to 
Admiral Allhouse and the two Congressional Records to 
the United States Attorney for the District of Columbia, 
the United States Attorney General, and the Office of 
Secretary of Defense, since that behavior is protected 
under other constitutional provisions, see infra, I have 
decided not to reach the question of whether it is en- 
compassed by the Clause. 

B. The Right to Report Possible Criminal Violations 
to the Appropriate Officials 

The United States Supreme Court stated in In Re 
Quarles and Butler, 158 U.S. 532 (1894): 

It is the duty and the right, not only of every peace 
officer of the United States, but of every citizen, to 
assist in prosecuting, and in securing the punish- 
ment of, any breach of the peace of the United 
States. * * * It is likewise his right and his duty to 
communicate to the executive officers any informa- 
tion which he has of the commission of an offense 
against those laws; and such information, given by 
a private citizen, is a privileged and confidential 
communication, for which no action of libel or slan- 
der will lie * * * . 



20 It is arguable that if the letter contained defamatory material 
directed at plaintiff, it was not within the legislative sphere or 
legitimate legislative activity. In some situations it may be that a 
primarily libelous letter which is only incidentally seeking infor- 
mation might not be protected under the clause. But here the 
letter was the second one defendant Harsha had sent to Admiral 
Allhouse in an attempt to gather information. The allegedly defam- 
atory matter might well have been considered necessary by the 
Congressman in order to pinpoint the exact material he was after. 
In any event, I am not willing in the face of a legitimate and 
somewhat extensive legislative inquiry to strip away the legislative 
immunity unless the fact situation clearly warrants it. I do not 
believe this case to be of such a nature. 



206 

The Court did not specify any particular constitutional 
provision upon which this right and duty rested, but 
rather felt it arose out of the nature and structure of 
our system of government and of the constitution. 

This "right to inform' ' is analogous to the First 
Amendment's right to petition the government for a 
redress of grievances. In Stern v. United States Gypsum, 
Inc., et al, 547 F.2d 1329 (7th Cir. 1977), cert, denied 434 
U.S. 975 (1977), plaintiff had been an agent of the Inter- 
nal Revenue Service and involved with an audit of de- 
fendant United States Gypsum, Inc. He brought suit 
under 42 U.S.C. § 1985(1), with pendent state law claims 
sounding in defamation and malicious interference with 
contract. He alleged that the individual defendants, cor- 
porate officers of defendant United States Gypsum, Inc., 
conspired to impede him in the performance of his 
duties by making false and defamatory charges of seri- 
ous professional misconduct to his Internal Revenue 
Service superiors regarding his behavior during the 
audit of United States Gypsum, Inc. The question before 
the appellate court was whether these allegations stated 
a claim under 42 U.S.C. § 1985(1). Although the court 
believed that the complaint may have stated a claim, it 
felt that the alleged behavior of defendants was consti- 
tutionally protected. The court stated: 

We think it plain that presenting complaints to 
responsible government officials about the conduct 
of their subordinates with whom the complainer 
has had official dealings is analogously central to 
the protections of the right to petition, p. 1342-1343 
* * * we consider it irrelevant to the applicability 
to the right to petition that its exercise might have 
the effect of causing professional injury to the offi- 
cial about whom complaints are made. * * * p. 
1343 

Although defendant Harsha may not have had official 
dealings with plaintiff Rusack in the same manner as 
the defendants in Stern, supra, he did have official deal- 
ings in the sense that overseeing how the Navy spends 
part of its allotted monies is part of his general official 
duties. 



207 

The complaint alleges that plaintiff was defamed by 
defendant Harsha in regard to the performance of his 
(plaintiffs) official duty, specifically alleging that Mr. 
Harsha accused plaintiff of violating 18 U.S.C. § 1001 
(Statements or entries generally; this is the first section 
of Chapter 47 — Fraud and False Statements). The whole 
thrust of the complaint and the brief in opposition to 
the motion is that defendant Harsha has accused plain- 
tiff of criminal acts. 21 

The right to inform federal officials of possible viola- 
tions of federal law continues to be constitutionally pro- 
tected. See United States v. Guest, 383 U.S. 745, 771, 779 
(1966), Harlan, J., concurring in part and dissenting in 
part; Brennan, J. concurring in part and dissenting in 
part; Williams v. Allen, 439 F.2d 1398 (5th Cir. 1971). 22 I 
believe that the letter to Admiral Allhouse and the 
forwarding of the materials to the United States Attor- 
ney for the District of Columbia, the United States At- 
torney General, and the office of the Secretary of De- 
fense are protected by this constitutional right to 
inform, afford defendant immunity, and, hence, cannot 
form the basis of a defamation action. 

C. First Amendment — Freedom of Speech 

Beginning with New York Times Co. v. Sullivan, 376 
U.S. 254 (1966), the Supreme Court has strictly limited, 
as a matter of constitutional law, the right of a public 
official to sue and recover for alleged defamations relat- 
ing to his or her official conduct. The first amendment 
right of free speech provides a qualified immunity from 
liability for defamation actions brought by public offi- 
cials and others. 23 If a plaintiff is a public official and 
the alleged defamation relates to his official conduct he 
may only recover if he can show that the defamatory 

21 See HH 10 and 15 of Count I, H 25 and 28 of Count II, and r 37 
of Count III. Also, see Doc. 24, plaintiffs opposition brief, p. 1. 

22 The fact that defendant Harsha is a Congressman does not 
detract from the fact that he too is protected by constitutional 
rights applicable to the general citizenry. 

23 See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Curtis 
Publishing Co. v. Butts, 388 U.S. 130 (1967) reh. den. 389 U.S. 889 
(1967). 



208 

statement was made with "actual malice," (hereinafter 
referred to as New York Times malice), i.e., with knowl- 
edge that the statement was false or with reckless disre- 
gard as to whether it was false or not. This New York 
Times malice must be proved by the plaintiff by clear 
and convincing evidence or by "convincing clarity." See 
Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974); 
Dickey v. CBS, Inc., No. 77-2615 (3rd Cir., Sept. 18, 
1978). A bare allegation of New York Times malice is 
not enough to withstand a summary judgment motion. 
See Hutchinson v. Proxmire, 431 v. Supp. 1311 (W.D. 
Wise. 1977); Fram v. Yellow Cab Company of Pittsburgh, 
380 F. Supp. 1314, 1335 (W.D.Pa., 1974). 

The first issue is whether plaintiff is a public official. 
Although this is sometimes a difficult question, I believe 
that plaintiff clearly qualifies as such. 24 In Rosenblatt v. 
Baer, 383 U.S. 75 (1966), the Supreme Court, in discuss- 
ing who qualifies as a public official for First Amend- 
ment purposes, stated: 

"It is clear, therefore, that the 'public official' 
designation applies at the very least to those among 
the hierachy of government who have, or appear to 
the public to have, substantial responsibility for or 
control over the conduct of governmental affairs. 

"* * * The thrust of New York Times is that when 
interests in public discussion are particularly 
strong, as they were in that case, the Constitution 
limits the protections afforded by the law of defa- 
mation. Where a position in government has such 
apparent importance that the public has an inde- 
pendent interest in the qualifications and perform- 
ance of the person who holds it, beyond the general 
public interest in the qualifications and perform- 
ance of all government employees, * * * the New 
York Times malice standards apply. 
"* * * The employee's position must be one which 
would invite public scrutiny and discussion of the 



24 Plaintiff does not controvert that he is a public official. Howev- 
er, he does state in his brief that the contention that he is a public 
official should be raised as a defense in the answer, implying it is 
not properly raised in a motion for summary judgment. Plaintiff 
cites no authority for this meritless contention. 



209 

person holding it, entirely apart from the scrutiny 
and discussion occasioned by the particular charges 
in controversy." P. 85-86, 89, fn. 13. 

Plaintiff Rusack, in his complaint, states that the 
defamatory material which defendant Harsha allegedly 
directed at him "impede plaintiffs ability and fitness to 
serve the United States people in a position of trust." 
See Doc. No. 1, U 13(e), 26(e), and 36(e). I agree that 
plaintiff holds a position of public trust. This is con- 
firmed by 32 C.F.R. 1-113.1, the regulation dealing with 
the standard of conduct for government personnel en- 
gaged in procurement and related activities. Further- 
more, as stated supra, plaintiff is involved in solicita- 
tions for contracts, requests for proposals, formal adver- 
tising, negotiating, and has buying and contract officer 
authority at the SPCC and, as such, is authorized to 
enter into contracts in the name of and on behalf of the 
United States government. Assuming that plaintiff is 
not involved with the administration of the contracts, it 
is nevertheless evident that he is intimately involved in 
the expenditures of public funds, a matter of great im- 
portance so that there is an interest in his qualifica- 
tions and performance beyond the interest which might 
be associated with any governmental employee. He is, 
therefore, a public official and since the allegedly de- 
famatory remarks dealt with his performance as such 
an official the New York Times malice standard must be 
applied. 

Plaintiff, in his affidavit and accompanying exhibits, 
in effect attempts to show that the allegations made by 
defendant Harsha were incorrect. Apparently, plaintiff 
has been exonerated in regard to the contract in ques- 
tion by Navy investigations. And he states that "* * * 
Mr. Harsha's remarks and allegations have been made 
with a complete and reckless disregard of the truth." 25 



25 Of course, as stated supra, the mere statement, even if con- 
tained in an affidavit, that there was New York Times malice, does 
not meet plaintiffs burden. To reiterate, in order to prevail on the 
New York Times malice issue, he must produce facts and /or proof 
such that it would be possible for a factfinder to decide that New 
York Times malice has been shown by clear and convincing evi- 
dence. 



210 

Defendant Harsha, in his affidavit, states that he be- 
lieved the statements in question to be true when made 
and that he still believes them to be true. This is not 
controverted. But the question is whether defendant 
Harsha has acted with reckless disregard as to the 
truth or falsity of the statements. Or, as has been 
stated, with a "high degree of awareness of * * * prob- 
able falsity." See Hutchinson v. Proxmire, 579 F.2d 1027 
(1978) citing St Amant v. Thompson, 390 U.S. 727, 730- 
731 (1968); Gertz v. Robert Welch, Inc., supra at 342. 
In St. Amant. v. Thompson, 390 U.S. 727 (1968), the 
Supreme Court held that the failure to investigate does 
not satisfy the New York Times malice standard. There 
defendant St. Amant had been a candidate for public 
office in Louisiana and had made a televised speech. 
During the course of this speech St. Amant read a 
series of questions he had posed to a local union official 
and the answers the local official gave to those ques- 
tions. One of those answers defamed plaintiff Thomp- 
son. The lower state court had found for plaintiff. An 
intermediate appellate court reversed, finding that 
there had been no showing of New York Times malice. 
The Louisiana Supreme Court reversed the intermedi- 
ate appellate court, finding that there was sufficient 
evidence that St. Amant had recklessly disregarded 
whether the statements about Thompson were true or 
false. Several reasons were given supporting this conclu- 
sion. St. Amant had no personal knowledge of the activ- 
ities of Thompson; he had relied solely on the affidavit 
of the union official, although the record was silent as 
to the union official's reputation for truthfulness; he did 
not verify the information with people in the union 
office who might have known the true facts; he went 
ahead without considering whether the statements de- 
famed Thompson and heedless of the consequences; and 
he had mistakenly believed that he was not responsible 
for the broadcast because he was only quoting the union 
official's words. The United States Supreme Court found 
that these considerations did not establish reckless dis- 
regard or New York Times malice. The court stated: 



211 

"* * * reckless conduct is not measured by whether 
a reasonably prudent man would have published, or 
would have investigated before publishing. There 
must be sufficient evidence to permit the conclusion 
that the defendant in fact entertained serious 
doubts as to the truth of his publication. Publishing 
with such doubts shows reckless disregard for truth 
or falsity and demonstrates actual malice/' p. 731 

The court recognized that the New York Times malice 
standard might allow erroneous and libelous publica- 
tions to go unredressed. Nevertheless, this is the price 
that must be paid to "* * * insure the ascertainment 
and publication of the truth about public affairs * * *." 
The court went on to state: 

The finder of fact must determine whether the pub- 
lication was indeed made in good faith. Professions 
of good faith will be unlikely to prove persuasive, 
for example, where a story is fabricated by the 
defendant, is the product of his imagination, or is 
based wholly on an unverified anonymous tele- 
phone call. Nor will they be likely to prevail when 
the publisher's allegations are so inherently im- 
probable that only a reckless man would put them 
in circulation. Likewise, recklessness may be found 
where there are obvious reasons to doubt the verac- 
ity of the informant or the accuracy of his reports, 
p. 732 

Based on the facts in the record, it is clear that, as a 
matter of law, there can be no finding of New York 
Times malice against defendant Harsha. 26 Assuming 



26 Plaintiff has requested that if the court finds the averments of 
malice insufficient, leave be granted to amend the complaint. This 
request is obviously being denied. First, an amended complaint will 
be of no assistance to plaintiff when he cannot, via affidavit or 
with other appropriate material, controvert the relevant portions 
of the affidavits and material supporting the summary judgment 
motion. Secondly, there are the First Amendment and legislative 
immunity considerations, See n. 17 supra, which make granting 
summary judgment particularly appropriate where the facts war- 
rant it. It may well be that in the situation such as the one 
presented here, a grant of summary judgment is the rule rather 
than the exception. See Hutchinson v. Proxmire, 431 F. Supp. 1311 

Footnotes continued on next page 



212 

that Mr. Bishop is a paid employee of Poli-Com, Inc., 
that Mr. Harsha relied almost exclusively on his (Bish- 
op's) analysis of the situation, and that this analysis 
was wrong, the standards as set out in St. Amant v. 
Thompson, supra, have not been met. Here defendant 
Harsha had satisfactory dealings with Mr. Bishop in the 
past regarding military procurement practices. A 
member of defendant Harsha's staff always reviewed 
the materials, which appear to this court to be extreme- 
ly complex. The most that possibly can be said here is 
that defendant Harsha did not investigate as thorough- 
ly as he might have, by, for example, contacting those 
who might present a different viewpoint from that es- 
poused by Mr. Bishop. 27 This clearly does not satisfy the 
New York Times malice standard as set out in St. 
Amant, supra. All the alleged behavior upon which the 
complaint against Mr. Harsha is based is protected by 
the First Amendment and summary judgment is appro- 
priate under the circumstances and will be granted. 
In sum, legislative immunity protects defendant 
Harsha from suit based on the two speeches, their inser- 
tion in the Congressional Record, and the letter to Ad- 
miral Allhouse. The right to inform creates a constitu- 
tional immunity from suit for the letter to Admiral 
Allhouse and the forwarding of the material to the 
United States Attorney General, The United States At- 
torney for the District of Columbia, and the Office of 
the Secretary of Defense. And the constitutional privi- 
lege of the First Amendment encompasses all the be- 
havior upon which this action is based because, as a 
matter of law, plaintiff is a public official and there can 



Footnotes continued from last page 

(W.D.Wisc. 1977), aff d 579 F.2d 1027 (7th Cir. 1978) and the cases 

cited therein. 

27 The facts here are significantly different from those presented 
in Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). For further 
support that New York Times malice cannot be shown on the facts 
presented here, see Dickey v. CBS, Inc., 77-2615 (3rd Cir. Sept. 18, 
1978). 



213 

be no showing of New York Times malice based on the 
facts in the record. 

William J. Nealon, Chief Judge, 

Middle District of Pennsylvania. 

Dated: December 14, 1978. 

Order 

Now, this 14th day of December 1978, in accordance 
with the accompanying memorandum this day filed, it 
is hereby ordered that the motions of defendants 
Bishop, Kanistros, and Poli-Com, Inc. are denied. It is 
further ordered that defendant Harsha's motion for 
summary judgment is granted, judgment is entered for 
him, and he is dismissed from the action. 

William J. Nealon, Chief Judge, 

Middle District of Pennsylvania. 



Notice: This opinion is subject to formal revision before publication 
in the Federal Reporter or U.S.App.D.C. Reports. Users are requested 
to notify the Clerk of any formal errors in order that corrections may be 
made before the bound volumes go to press. 



United States (tart at Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 



No. 77-1302 
Exxon Corporation, appellant 

v. 

Federal Trade Commission, et al. 

(Civil 76-0812) 



No. 77-1303 

Kerr-McGee Corporation, appellant 

v. 

Federal Trade Commission, et al. 

(Civil 76-0814) 



Bills of costs must be filed within 14 days after entry of judgment. The 
court looks with disfavor upon motions to file bills of costs out of time. 

(215) 



37-148 O - 79 - 15 



216 

2 

No. 77-1304 

Union Carbide Corporation, appellant 

v. 

Federal Trade Commission, et al. 

(Civil 76-0793) 



Appeals from the United States District Court 
for the District of Columbia 



Argued February 13, 1978 

Decided October 19, 1978 

Roberts B. Owen, for appellant in No. 77-1302. Argued 
on behalf of all appellants. 

J. Randolph Wilson and Steven S. Rosenthal were on 
the brief, for appellant in No. 77-1303. 

James H. Wallace, Jr. and Thomas C. Arthur were on 
the brief, for appellant in No. 77-1304. 

Gerard P. Norton, Acting General Counsel, Federal 
Trade Commission, with whom Earl J. Silbert, United 
States Attorney, John A. Terry, and Joel S. Perwin, As- 
sistant United States Attorneys, Jerald D. Cummins, 
Acting Assistant General Counsel, and Arthur W. 
Adeloug, Attorney, Federal Trade Commission, were on 
the brief, for appellees. 

Michael Lemov was on the brief, for Amicus Curiae, 
Congressman John E. Moss, urging affirmance. 



217 



3 



Before Robinson, MacKinnon and Robb, Circuit 
Judges. 

Opinion for the court filed by Circuit Judge Mac- 
Kinnon. 

MacKinnon, Circuit Judge: Exxon appeals from the 
district courts refusal to grant injunctive or declaratory 
relief and from its subsequent denial of a stay pending 
appeal. At issue is whether any protective measures 
should be imposed on the Federal Trade Commission 
(hereafter the "Commission" or the "FTC") with respect 
to the divulgence to Congress of "trade secrets" obtained 
by it under the compulsion of a subpoena. 1 The con- 
trolling statute provides : 

The [Federal Trade] Commission shall also have 
power— * ♦ * ♦ 

(f ) To make public from time to time such portions 
of the information obtained by it hereunder, except 



1 There is no question that the information in question here 
qualifies under this court's definition of "confidential" infor- 
mation for purposes of the Freedom of Information Act, 5 
U.S.C. §552 (1970). In National Parks and Conservation 
Assoc, v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974), rev'g 
351 F. Supp. 404 (D.D.C. 1972) we stated that information 
will be considered confidential if its disclosure is likely to 
"cause substantial harm to the competitive position of the 
person from whom the information was obtained." Produc- 
tion forecasts such as are at question in this case would clearly 
cause such competitive harm were they disclosed to competi- 
tors. See J A 64 (Dickeman Affidavit for Exxon Co.) ; J A 73 
(Zitting Affidavit for Kerr-McGee Co.) ; JA 78 (Thurber Affi- 
davit for Union Carbide Co.). Trade Secrets and other con- 
fidential data are not immune to FTC investigation, Covey 
Oil Co. v. Continental Oil Co., 340 F.2d 973 (10th Cir.), cert, 
denied, 354 U.S. 925 (1965). For the broad range of the 
Commission's subpoena power in general, see, e.g., Menzies v. 
FTC, 242 F.2d 81 (4th Cir.), cert, denied, 353 U.S. 957 (1957) ; 
12 Von Kalinowski, Trade Regulation §86.06 (1977). 



218 



trade secrets and names of customers, as it shall 
deem expedient in the public interest . . . 

15 U.S.C. § 46(f) (emphasis added). The parties do not 
dispute, nor could they after our decision in Ashland Oil, 
Inc. v. FTC, 548 F.2d 977 (D.C. Cir. 1976), that Con- 
gress has a right of access to such information, includ- 
ing trade secrets. The issue before us concerns solely 
the question of notice to parties prior to disclosure of their 
confidential information and of safeguards to ensure the 
continued confidentiality of such information once dis- 
closed to the Congress. 

I 

In 1975, pursuant to a subpoena, Exxon, Kerr-McGee, 
and Union Carbide made available to the Commission in- 
formation relating to their ownership, operation of, and 
future expectations for their uranium holdings. 2 It is 
undisputed that some of this material involved trade 
secrets, particularly the data concerning the production 
and projected yield of individual mines. In April of 
1976, in the course of considering S. 489, 94th Cong., 
1st Sess., which proposed prohibiting oil companies from 
owning interests in fuel reserves other than oil and gas, 
Senator Hart wrote to the Commission on official sta- 
tionery of the Senate Judiciary Subcommittee on Anti- 
trust and Monopoly requesting the Commission to make 
available all information it had concerning the coal and 
uranium holdings of the oil companies. 3 The F.T.C., be- 



2 Appellant Union Carbide also submitted, and sought to 
protect, data relating to its coal holdings. Government Brief 
at 2-3. 

3 Senator Hart at the time was Chairman of the Senate 
Subcommittee on Antitrust and Monopoly. He wrote to the 
FTC following receipt of a letter from Senator Abourezk, also 
a member of the Subcommittee on Antitrust and Monopoly. 
In his letter Senator Abourezk suggested that the information 
in the FTC's possession was "crucial" to the consideration 
of S. 489. JA 61. 



219 



cause of the relationship of its functions to those of 
Congress, treats such congressional requests as compul- 
sive, even though they lack the formal status of con- 
gressional subpoenas. However, the Commission had pre- 
viously assured the companies in writing that in the 
event of any congressional request for confidential in- 
formation (trade secrets), it would both advise the Mem- 
bers of Congress who submitted the request that the 
information should be considered confidential when re- 
ceived, and give the companies themselves ten days prior 
notice of disclosure, whenever such notice was "reason- 
ably possible" (Government's Brief at 2-3). 

In early May, the Commission notified appellants of 
the subcommittee's requests, and appellant Union Carbide 
quickly obtained a court order restraining the disclosure 
of the requested information until ten days after the 
decision in the then pending Ashland Oil, Inc. v. F.T.C. 
case. Shortly after the Union Carbide order was issued, 
the subcommittee forwarded a formal request for im- 
mediate access to the information, and the Commission 
informed the parties that it would disclose the data re- 
quested the following day, except insofar as protected 
by the court order obtained by Union Carbide. At this 
point, Kerr-McGee and Exxon also succeeded, despite only 
23 hours advance notice, in obtaining a preliminary in- 
junction barring disclosure until the decision in Ashland 
Oil. 

Some months later, in September, 1976, in Ashland 
Oil, Inc. v. F.T.C, 548 F.2d 977 (D.C. Cir. 1976) this 
court decided that it was permissible for the Commission 
to disclose confidential information to Congress. 1 The 



4 Ashland Oil did not consider or determine the amount of 
notice the Commission might be required to give corporations 
whose trade secrets were to be divulged to Congress, or what 
steps the Commission should or could take to safeguard the 
confidentiality of these secrets once revealed to Congress. The 



220 



district court thereupon dissolved the preliminary injunc- 
tion granted to appellants, on the grounds that they were 
unlikely to succeed on the merits, as Ashland Oil had 
determined that disclosure to Congress did not constitute 
"public disclosure," and also that the companies were 
not threatened with irreparable injury. 5 The district 
court also denied appellants' request that the Commission 
be required to give ten days advance notice before re- 
vealing trade secrets to Congress. From this decision 
the appellants briefly obtained a stay pending appeal or 
until "further order of this Court," ' 6 but this stay too was 
later vacated in light of Ashland Oil 7 

Some of the information that the appellants sought 
to protect has already been disclosed, and this appeal is 
moot as to this material. 8 Other information, although 
vulnerable to disclosure whenever Congress may request 
it, remains undivulged. 9 As regards this information, and 



question in Ashland Oil simply was whether or not the F.T.C. 
was authorized to divulge trade secrets at all, in light of 15 
U.S.C. §46(f) , s prohibition against "making public" such 
secrets. Likewise Ashland Oil did not consider the issue of 
liability for damages resulting from the disclosure of trade 
secrets in violation of 15 U.S.C. § 46(f). 

5 JA 90. 

6 JA 92, Order of March 30, 1977. 

7 JA 96, Order of May 6, 1977. 

8 The information disclosed consisted of the data concerning 
Union Carbide's coal holdings. 

9 Senator Kennedy, the new Chairman of the Subcommittee 
on Antitrust and Monopoly expressed the continued interest 
of the Subcommittee in the information originally requested 
by the late Senator Hart by a letter to Judge Leventhal of this 
Circuit Court, dated April 13, 1977. Senator Moss, Chairman 
of the Senate Committee on Oversight and Investigation, by 
letter of April 19, 1977 to the Clerk of the United States Court 
of Appeals expressed a similar interest. The status of these 
letters in this proceeding is unclear since the record does not 
indicate the authority for their issuance. 



221 



appellants' general request that the Commission be re- 
quired to give ten days notice prior to disclosure, and that 
reasonable steps be required to ensure that Congress will 
keep such trade secrets confidential, the issues before us 
are not moot, and we resolve them here. 10 

It should be noted, however, that a large part of the 
questions raised by appellant while not moot, represent 
an attempt to have this court virtually engage in rule- 
making for the FTC. 11 Our situation is somewhat 






10 If the FTC during the course of this appeal discloses the 
as yet undivulged information, this appeal will become moot 
as regards such information. However, appellant's request 
that the court issue a protective order requiring certain pro- 
cedures to protect confidential data in the hands of the FTC 
when such data is requested by Congress will not itself be 
mooted by the disclosure of the information involved in this 
particular case. A suit for an injunction is not moot where 
the action which plaintiff seeks to enjoin may recur in the 
future. United States v. Concentrated Phosphate Export 
Ass'n, 393 U.S. 199 (1968); see also, United States v. W. T. 
Grant Co., 345 U.S. 629 (1953) . The FTC admits that it fully 
intends to hold open the option of disclosing trade secrets 
in the future without the safeguards sought by appellants. 
The fact that some issues in a case have become moot does 
not prevent a court from reviewing nonmooted issues where 
these are sufficiently significant that the cause of action re- 
mains justiciable, e.g., Super Tire Engineering Co. v. Mc- 
Corkle, 416 U.S. 115 (1974); United Public Workers v. 
Mitchell, 330 U.S. 75 (1946); 6A J. Moore, Federal Prac- 
tice § 57.13 at 57-121-125. 

11 Appellants assert {see Reply Brief for Appellant Exxon 
at 31-35) that the purpose of obtaining notice prior to dis- 
closure is to have sufficient time to seek judicial review of the 
proposed divulgement. In this case, however, all appellants 
were able on very short notice to secure prior judicial review. 
Thus the fact pattern before this court is a particularly in- 
appropriate one in which to evaluate the damage that might 
result if a company were unable to obtain judicial review be- 
fore disclosure as the court does not have before it any evi- 
dence of the effect of such denial. 



222 



8 



analagous to those in which expansive conceptions of 
standing and ripeness have occasioned adjudications in 
which the courts have been cast in the inappropriate, and 
possibly ultra vires, role of attempting to resolve essen- 
tially abstract questions in reviewing agency regulations, 
see, e.g., ASARCO, Inc. v. EPA, 578 F.2d 319 (D.C. 
Cir. 1978) (MacKinnon, J., concurring in part and dis- 
senting in part). In this case, appellants request this 
court to assume the inappropriate and potentially over- 
reaching role of promulgating confidentiality guidelines 
for the Commission. We have, however, explicitly re- 
stricted our judgment in a previous case dealing with 
similar issues to the facts of that case, eschewing estab- 
lishing any broad principle limiting the Commission's ac- 
tions, see FTC v. Texaco, Inc., 555 F.2d 862 (D.C. Cir.) 
(en banc), cert, denied, 431 U.S. 974 (1977) and we see 
no reason, nor any justification for doing otherwise in 
deciding this appeal. 

II 

Concerning appellants' prayer for a permanent injunc- 
tion requiring ten days warning to affected parties before 
the FTC can disclose confidential data pursuant to con- 
gressional request, although we are very sympathetic to 
the need to protect the owners of valuable trade secrets, 
e.g., Underwater Storage, Inc. v. United States Rubber 
Co., 371 F.2d 950, 954 (D.C. Cir. 1966), cert, denied, 
382 U.S. 911 (1967),— and would allow them to be dis- 
closed only upon valid formal requests of Congress or its 
committees, see part V, infra — we consider, given no 
more basis for such an injunction than what is presented 
here, that no basis exists for us to inject the courts into 
what is only an incipient controversy. 

The authority of the subcommittee to make a proper 
request for information of the nature that appellants 
seek to protect is not questioned. The disclosure was not 
to be used as "exposure for exposure's sake," see Watkins 



223 



v. United States, 354 U.S. 178 (1957), and the subject 
of the subcommittee's inquiry was one "on which legisla- 
tion could be had" and thus was a proper topic of Con- 
gressional inquiry, McGrain v. Daugherty, 273 U.S. 135, 
177 (1927) ; Braden v. United States, 272 F.2d 653 (5th 
Cir. 1959) ; Sacher v. United States, 252 F.2d 828 (D.C. 
Cir.), rev'd on other grounds, 356 U.S. 576 (1958). 
The material that the FTC proposed to divulge, then, 
was fully within the scope of the legislature's legitimate 
investigatory powers. 

For this court on a continuing basis to mandate an 
enforced delay on the legitimate investigations of Con- 
gress whenever these inquiries touched on trade secrets 
could seriously impede the vital investigatory powers of 
Congress and would be of highly questionable constitu- 
tionality. While normally reasonable advance notice can 
be required, in exigent circumstances Congress has full 
authority to issue forthwith subpoenas and formally re- 
quest immediate disclosure. To impose a mandatory no- 
tice period would skirt dangerously close to being at 
least the temporary "equivalent to an order quashing 
[the official request or subpoena] which is generally an 
impermissible frustration of the congressional power to 
investigate . . " United States v. American Tel. & Tel Co., 
551 F.2d 384, 388 (D.C. Cir. 1976), citing, Eastland v. United 
States Servicemen's Fund, 421 U.S. 491, 506 (1975) and 
hence would raise serious constitutional issues. It would 
also abrogate the broad discretion of the Commission, e.g., 
FTC v. Lonning, 539 F.2d 202, 211 (D.C. Cir. 1976),— 
through which the FTC can make use of its considerable 
expertise to balance the private and public interests in- 
volved — to formulate its own reasonable confidentiality 
protections, see FTC v. Anderson, 442 F. Supp. 1118 (D.D.C. 
1977). 12 



12 The FTC argues that it would be without authority to 
resist forthwith subpoenas or formal requests for an im- 



224 



10 



To impose any mandatory advance notice would run 
directly counter to the spirit expressed in Eastland v. 
United Servicemen's Fund, supra : 

This case illustrates vividly the harm that judicial 
interference may cause. A legislative inquiry has 
been frustrated for nearly five years, during which 
the Members and their aide [sic] have been obliged 
to devote time to consultation with their counsel con- 
cerning the litigation, and have been distracted from 
the purpose of their inquiry. The Clause [the 
Speech or Debate Clause] was written to prevent the 
need to be confronted by such "questioning" and to 
forbid invocation of judicial power to challenge the 
wisdom of Congress* use of its investigative author- 
ity. 

421 U.S. at 511. 

The inquiry in Eastland differed from that in the 
present appeal, 13 but the decision's emphasis on the neces- 
sity for courts to refrain from interfering with or delay- 
ing the investigatory functions of Congress has an obvious 
relevance to appellants' demand that we impose a ten day 
delay on the FTC's compliance with any Congressional re- 
quest for certain information. 

Furthermore there is no indication that disclosure to 
the Subcommittee on Antitrust and Monopoly will in any 
way harm the appellants. We have heretofore held that 



mediate response, Brief for FTC at 20. Forthwith subpoenas 
in the areas involved in these cases are certainly a rarity be- 
cause of the time necessary to gather the information and the 
speed with which congressional committees function. 

13 Eastland held that the subpoena of certain bank records 
from organizations being investigated as potentially harmful 
to the morale of the armed services was within the "legiti- 
mate legislative sphere" and that the Speech or Debate Clause 
precluded judicial interference with congressional investiga- 
tions within this sphere. 



225 



11 



release of information to the Congress does not con- 
stitute "public disclosure," Ashland Oil, supra, 548 F.2d 
at 979; Exxon v. F.T.C, No. 76-0812 (D.D.C. March 
29, 1977) at 1. Because such divulgement is not "public," 
it does not in itself impair the value of the trade secrets 
involved, and thus does not involve a deprivation prior to 
which a hearing is required. Thus, the protection of a 
judicial order, which mandating advance notice would re- 
quire, is not necessary before such disclosure in order to 
accord with principles of due process, see Roth v. Bd. of 
Regents, 408 U.S. 564 (1972) ; Perry v. Sinderman, 408 
U.S. 593 (1972). The courts must presume that the 
committees oi Congress will exercise their powers re- 
sponsibly and with due regard for the rights of affected 
parties, Ashland Oil v. FTC, supra, 548 F.2d at 979, 
quoting Ashland Oil v. FTC, 409 F. Supp. 297, 308 
(D.D.C. 1976); see also, Safeway Stores, Inc. v. FTC, 
428 F. Supp. 346, 347 (D.D.C. 1977). In sum, we re- 
affirm our rationale in Ashland Oil that absent a show- 
ing that it is "evident" that Congress intends to make 
trade secrets divulged to it by the FTC publicly avail- 
able, the Commission may, upon proper demand, release 
such secrets to the Congress without the necessity of 
prior notice to the parties involved, unless of course the 
Commission obtained such information upon an agree- 
ment to give prior notice to the party. 14 



14 We thus decline to impose on the Commission either an 
unqualified ten day warning requirement or the more flexible 
alternative of mandating simply "reasonable prior notice." 
We have recently held in the specific context of congressional 
requests for confidential data from the F.T.C. that release 
to the Congressional Committee is not "public disclosure," 
Ashland Oil v. F.T.C, supra. Thus, such disclosure does not 
in itself injure appellants. Furthermore, as a general princi- 
ple, judicial intervention to prevent potential injury from 
prospective government misconduct is only justified when 
such misconduct is imminent, not merely hypothetical, Re- 
porters' Committee for Freedom of the Press v. A.T.&.T., No. 



226 



12 



Our decision in FTC v. Texaco, Inc., supra, 555 F.2d 
at 884 in which ten days notice was required by the 
court with respect to a specific request does not in any 
way conflict with our refusal here to order a similar 
general warning period. We do not interpret Texaco 
as authority for establishing such a period as a general 
requirement for FTC disclosure of trade secrets to Con- 
gress. In that case we explicitly stated : 

The Court is not herein adopting a rule of general 
applicability for a 10-day notice provision. It is 
rather adopting for purposes of this case a proposal 
for confidentiality advanced by FTC .... 

555 F.2d at 884 n.64 (emphasis added). Clearly this 
court's decision to accept the F.T.C.'s own proposed settle- 
ment in a case which — as the district court noted 15 — 
was distinguishable on its facts from the present one, is 
not precedent for imposing a ten day rule in the situation 
before us now. Moreover, we also noted in Texaco that 
F.C.C. v. Schreiber, 381 U.S. 279, 295-296 (1965) made 
clear that "it is the agencies, not the courts, which should, 
in the first instance, establish the procedures for safe- 
guarding confidentiality," 555 F.2d at 884 n.62. The 
Commission has recently issued a notice of proposed rule- 
making involving its protection of confidential informa- 
tion, 43 Fed. Reg. 3571 (January 26, 1978 ). 16 It would 



76-2057 (D.C. Cir. August 11, 1978) at 66, 76-77, citing Rizzo 
v. Goode, 423 U.S. 362 (1976) ; Allee v. Medrano, 416 U.S. 802 
(1974) ; and Laird v. Tatum, 408 U.S. 1 (1972). To authorize 
such supervision as the appellants request would not only do 
violence to the presumption that congressional bodies will act 
responsibly, Ashland Oil v. F.T.C., supra, but also would 
place a significant impediment in the path of governmental 
investigations of important aspects of our economy. 

15 JA 84. 

16 The proposed rules provide that, in response to congres- 
sional requests for confidential data, "ten days notice shall be 
given where possible" (emphasis added), 43 Fed. Reg. 3574 



227 



13 

be completely inappropriate in light of our interpreta- 
tion of the Schreiber case, and the view we take of our 
judicial authority, to interfere at this point and impose 
what in effect would be a general protective order upon 
the F.T.C., see also, F.T.C. v. United States Pipe and 
Foundry Co., 304 F. Supp. 1254, 1260 (D.D.C. 1969) ; 
Gelhorn, The Treatment of Confidential Information by 
the Federal Trade Commission: Pretrial Practices, 36 
U. Chi. L. Rev. 113, 126 (1968). 

Ill 

Appellants' further contention that prior to disclosure 
the FTC should obtain assurances that confidential in- 
formation will not be publicly disclosed unless a majority 
of the members of the committee or subcommitee vote 
to do so, deserves only perfunctory discussion. Again, 
we are sympathetic to appellants' concern for safeguard- 
ing highly confidential information worth millions of 
dollars, but for this court on this record to establish 
any such requirement would clearly involve an unac- 
ceptable judicial intrusion into the internal operations 
of Congress. Although the courts will intervene to pro- 
tect constitutional rights from infringement by Congress, 
including its committees and members, e.g., Yellin v. 
United States, 374 U.S. 109, 143-144 (1963); Watkins 
v. United States, supra; United States v. Ballin, 144 
U.S. 1, 5 (1892); Jordan v. Hutcheson, 323 F.2d 597 
(4th Cir. 1963), where constitutional rights are not vio- 
lated, there is no warrant for the judiciary to interfere 
with the internal procedures of Congress, e.g., Consumers 
Union of the United States v. Periodical Correspondents 
Assoc, 365 F. Supp. 18, 24 (D.D.C. 1973), rev'd on 
other grounds, 515 F.2d 1341 (D.C. Cir. 1975); Con- 






(January 26, 1978). It would seem that the rule should pro- 
vide that in all instances the party will be notified immediately 
whenever Congress makes a proper request for trade secrets. 



228 



14 



sumers Union of the United States v. Periodical Corres- 
pondents Assoc., 515 F.2d 1341, 1347-1348 (D.C. Cir. 
1975). This court cannot assume that Congress will act 
irresponsibly in regulating or disclosing appellants' trade 
secrets. Barring the imminence of such disclosure, ap- 
pellants' constitutional rights are not in fact jeopardized 
by delivery of their secrets to Congress. On this record 
there is no justification for this court to interfere with 
the operations of the legislative branch, see, Frothingham 
v. Mellon, 262 U.S. 447, 488 (1923) ; Decatur v. Paulding, 
39 U.S. (14 Pet.) 497 (1840); Protestants and Other 
Americans for Separation of Church and State v. O'Brien, 
272 F. Supp. 712 (D.D.C. 1967). 

It would exceed our jurisdiction for this court to re- 
quire guarantees of specific congressional procedures in 
advance of any concrete threat to appellants' vital in- 
terests. The strong and long-standing principle of ju- 
dicial abstention into the actions of the legislature de- 
mands that the courts, "avoid the possibility of unwar- 
ranted interference with a coordinate branch of govern- 
ment by requiring dismissal of applications [seeking to 
restrain congressional committees' use of information] 
not substantiated by a showing of need arising out of 
immediate threat to constitutional rights," Cole v. McClel- 
lan, 439 F.2d 534, 535-536 (D.C. Cir. 1970) ; e.g., Davis 
v. Ichord, 442 F.2d 1207 (D.C. Cir. 1970). Courts should 
refrain from creating "needless friction" with a coordi- 
nate branch of government, Railroad Comrn'n v. Pullman 
Co., 312 U.S. 496, 500 (1941) ; Ansara v. Eastland, 442 
F.2d 751, 753 (D.C. Cir. 1971), and imposing a par- 
ticular voting requirement to operate in the manner of 
a Congressional Rule, on the grounds that such a safe- 
guard is necessary to ensure that Congress will act re- 
sponsibly with secrets entrusted to it, is not only not re- 
fraining from, but actually provoking such "needless 
friction." The FTC and this court are compelled to rely 
on the assumption that Congressional committees will act 



229 



15 



responsibly with confidential data revealed to them, An~ 
sara v. Eastland, supra, 442 F.2d at 754; Ashland Oil 
v. F.T.C., 409 F. Supp. 297, 308 (D.D.C.), afd, 548 
F.2d977 (D.C. Cir. 1976). 

If, in fact, a Member or congressional staff member 
improperly "leaks" confidential data, the injured parties 
have a recourse against that individual directly, 17 and 
the possibility of such action will serve to deter unjus- 
tified disclosure of trade secrets. Beyond provision for 
such suits, and in the absence of a concrete violation of 
law, rule or regulation, the courts are unable to aid the 
appellants in their request to oversee the activities of the 
legislature, allegations of the prevalence of "leaks" from 
some committees notwithstanding. The FTC should, and 
does, alert Congress when the information made available 
to it is confidential. In fact, some such cautionary state- 
ment could be impliedly required from the prohibition on 
the public disclosure of trade secrets imposed by 15 
U.S.C. § 46(f). If the Commission failed to alert Con- 
gress to the fact that information being supplied to it 
was by statute prohibited from "public" disclosure the 
Commission would violate a duty implicitly imposed upon 
it by the statute. To impose further protective proce- 
dures upon Congress, without some immediate threat of 
illegal disclosure, would impermissibly interfere with the 
legislative branch — an action we refuse to take. 

IV 

Appellants also ask this court to require the FTC 
precisely to ascertain that the Congress specifically de- 
sires access to trade secrets, not merely more general (and 
less confidential) data, before it divulges such informa- 



17 An official or employee of the Commission who makes an 
unauthorized public disclosure of confidential information may 
be guilty of a misdemeanor, see 16 C.F.R. § 4.10(c) ; see also, 
12 Von Kalinowski, Trade Regulation §89.04 [2] at 89-33 
(1977). 



230 



16 



tion. Of course, the FTC should not simply disclose trade 
secrets to Congress "sua sponte." The Commission, how- 
ever, will invariably know the nature of the information 
in its possession far more accurately than Congress, and 
oftentimes may be aware of data clearly pertinent to an 
investigation of which Congress has no knowledge or 
intimation. We would not restrict the right, prior to 
congressional demand, of the Commission to discuss with 
Members of Congress or their staff the general nature of 
available data and thus use its expertise to inform the 
legislature of relevant information of which the Con- 
gress may often be unaware. 18 Barring some prohibition, 
governmental agencies may interchange information. Most 
problems in this connection will be obviated if the Com- 
mission merely notifies Congress whenever confidential 
trade secrets are requested or involved in potential de- 
livery. In III, ante, we noted the obligation of the Com- 
mission to do this. 

V 

It is important to emphasize that our denial of ap- 
pellants' requested injunctive and declaratory relief de- 



18 Imposing a general restriction on the FTC's ability to 
assist Congress in the latter's investigations would be un- 
justified particularly in light of the fact that the Commission 
was formed in part to act as an arm of the legislature, assist- 
ing Congress in its investigations. A member of the Confer- 
ence Committee on the bill that originally established the 
F.T.C., Congressman Stevens, explained that: 

[The Commission] has the power to investigate for the 
benefit of Congress. It really performs the functions of 
a committee of Congress in the line of investigation and 
compilations and recommendations. It can ascertain all 
the facts, as we constitutionally have the power to do, 
or we can commit that power to a Commission or to a 
committee to do that. That is what we do in this case. It 
is an especially valuable function, and its beneficial work 
will be along the line of recommendation to Congress and 
the President. 51 Cong. Rec. 14935 (1914). 



231 



17 






signed to limit the manner in which the F.T.C. may 
respond to a subpoena or formal request issued by Con- 
gress, does not address the question of when such a re- 
quest or subpoena has been properly issued. While we 
are unable to agree with appellants' request for advance 
restrictions on the Commission's response to formal re- 
quests or subpoena, we feel that there is ample justifica- 
tion for insisting that the Commission only reveal statu- 
torily protected trade secrets when it has indeed received 
such a proper request or subpoena. 

There is no doubt that the subpoena power may be 
exercised on behalf of Congress by either House, East- 
land v. United Servicemen 1 s Fund, supra; see 2 U.S.C. 
§190b(a) (1976); House Rule XI cl.2(A), and that 
the subpoenas issued by committees have the same au- 
thority as if they were issued by the entire House of 
Congress from which the committee is drawn, e.g., In 
Re Motion to Quash Subpoenas and Vacate Service, 146 
F. Supp. 792, 794 (W.D. Pa. 1956). To issue a valid 
subpoena, however, a committee or subcommittee must 
conform strictly to the resolution establishing its investi- 
gatory powers, and only those parties expressly au- 
thorized to sign subpoenas may do so validly. For ex- 
ample, where the resolution granting subpoena power to 
a committee stated that subpoenas would be issued only 
by the whole committee, not even the Chairman himself 
could individually issue such a document, Liveright v. 
United States, 347 F.2d 473 (D.C. Cir. 1965) ; see also, 
Shelton v. United States, 327 F.2d 601 (D.C. Cir. 1963). 

The resolution which in Liveright was held not to jus- 
tify the Chairman's issuing a subpoena by himself is 
nearly identical to that of 2 U.S.C. § 190b (a) govern- 
ing the subpoena power of Senate committees and sub- 
committees. The resolution specified that "the committee 
or any duly authorized subcommittee thereof is authorized 
... to require by subpoena." Whereas the statute states 



232 



18 



that " [e] ach standing committee of the Senate, including 
any subcommittee of any such committee is authorized 
... to require by subpoena or otherwise." The clear in- 
tent of 2 U.S.C. § 190b (a), is that only committees 
or subcommittees can issue subpoenas in the name of 
the committee or subcommittee, and Liveright indicates 
how narrowly the number of persons entitled to issue 
subpoenas is to be interpreted. 

The purposes behind the limitation on the members 
of a committee or subcommittee who may issue subpoenas 
in its name is illuminated by the House Rule on this 
subject: 

A subpena may be authorized and issued by a 
committee or subcommittee under subparagraph (1) 
(B) in the conduct of any investigation or series 
of investigations or activities, only when authorized 
by a majority of the members voting, a majority be- 
ing present. The power to authorize and issue sub- 
penas under subparagraph (1) (B) may be delegated 
to the chairman of the committee pursuant to such 
rules and under such limitations as the committee 
may prescribe. Authorized subpenas shall be signed 
by the chairman of the committee or by any member 
designated by the committee. 

Rule XI cl. 2(m) (2) (A) Manual and Rules of the House 
of Representatives, 95th Congress (emphasis added). 19 This 



19 The reform rule adopted by the 94th Congress required 
subpoenas to be "authorized by a majority of the members of 
the committee . . " Id., cl. 2. (m) (emphasis added). See Ash- 
land Oil, Inc. v. FTC, 548 F.2d 977, 985-991 (D.C. Cir. 1976). 
The reform, however, was short lived, as the 95th Congress 
changed the rule to only require "a majority of the mem- 
bers voting, a majority being present." 

The Senate rule authorizes "[e]ach standing committee . . . 
including any subcommittee of any such committee ... to 
require by subpoena or otherwise the attendance of such wit- 



233 



19 



rule is plainly directed at eliminating the possibility that 
an individual member of a committee will — solely on his 
own initiative — issue a "subpoena" compelling production 
of evidence, and a similar purpose can be discerned in 
2 U.S.C. § 190b (a). The principle is important that dis- 
closure of information can only be compelled by authority 
of Congress, its committees or subcommittees, not solely 
by individual members; and only for investigations and 
congressional activities. Election to the Congress does not 
give an individual subpoena power over whatever in- 
formation be may happen to be interested in, and par- 
ticularly not over trade secrets, whose oftentimes enor- 
mous value may be forfeited by disclosure to the public. 

Although once a committee or subcommittee has in fact 
requested trade secret information, the separation of 
powers demands that the courts do little to interfere with 
how the Congress deals with this information; it is only 
when a formal committee or subcommittee request, or 
request by the committee chairman pursuant to an au- 
thorized investigation or activity, has been made that 
the doctrine of separation of powers becomes relevant at 
all. And as Congress itself has manifested a concern to 
prevent the issuance of subpoenas by individual members 
as opposed to committees, subcommittees or duly au- 
thorized committee chairmen, it is appropriate to require 
the FTC to take steps to ascertain the validity of a sub- 
poena (or the formal requests it treats as subpoenas) 
before it releases data it is required by statute to be 
kept confidential. 

Since the Freedom of Information Act makes a great 
deal of information available to the public and the FTC 
may volunteer certain ordinary information without any 
formal request, there does not seem to be any need for 






nesses and the production of such . . . documents [etc.] . . . 
as it deems advisable." Rules and Manual of the United States 
Senate, 95th Congress, § 190b. (a), p. 363 (1977). 



234 



20 



requiring the F.T.C. to determine whether or not a re- 
quest for such information is in fact a proper formal 
request or subpoena. However, trade secrets are explicitly 
excluded from that material which the Commission may 
in its good discretion "make public." 15 U.S.C. § 46(f), 
supra. See Bristol-Meyers Co. v. FTC, 424 F.2d 935, 
938 (D.C. Cir.), cert, denied, 400 U.S. 824 (1970). We 
thus note that Congress intended to prohibit the FTC 
from disclosing "trade secrets" and cannot therefore as- 
sume that it meant to allow divulgement of these secrets 
upon the casual request of individual Congressmen. 20 
Accordingly, although we do not require the FTC to 
observe the procedures proposed by the appellants to 
limit the manner in which the Commission responds to 
formal requests for trade secrets from Congress or its 
committees it is nothing more than common sense for the 
FTC to not disclose trade secrets except upon legally au- 
thorized requests therefore and to verify that fact before 
delivery. Trade secrets, by statute, are in a different 
position than ordinary non-confidential information with- 
in the possession of the Commission. 

In this particular appeal, it does not clearly appear 
that the request sent to the FTC by Senator Hart was 
a "formal request" authorized by the subcommittee. The 
Commission, however, may have been previously informed 
of subcommittee action that satisfied the necessary for- 
malities. The Senate rules empowered the Chairman of 
the Subcommittee on Anti-Trust and Monopoly to issue 
subpoenas for proper purposes authorized by the sub- 



20 We note that, in another context, Congress has mani- 
fested its solicitude to protect the interests of those individuals 
who are forced to entrust confidential data to agencies, see, 
e.g., H.R. Rep. No. 1497, 89th Cong., 2d Sess. 6 (1966) (a 
report on the bill that became the Freedom of Information 
Act of 1967) ; see generally, Note, Reverse-Freedom of Infor- 
mation Act Suits: Confidential Information in Search of 
Protection, 70 Nw.U.L.Rev. 995 (1976). 



235 



21 



committee, and the requests presented to the FTC in this 
case were signed by Senator Hart, on official stationery 
and asked that "the Commission make available to the 
Subcommittee that data which it has gathered on coal 
and uranium reserves." (Emphasis added). When the 
Commission receives such a letter and it has knowledge 
that said investigation has been duly authorized, it is 
reasonable of it to treat it as an authorized formal re- 
quest. Had Senator Hart himself written in a capacity 
other than that of Subcommittee Chairman, or had some 
other senator on the committee requested the confidential 
data, however, the statutory protection due to confidential 
trade secrets in the hands of the Commission, see 15 
U.S.C. § 46(f) ; FTC v. Texaco, Inc., sujyra, 517 at 151, 
demands that it not release such sensitive information 
without verifying that the request satisfies the require- 
ments of the controlling congressional rule. 

VI 

As a final point, the fact that appellants are appealing 
from the district court's refusal to grant equitable relief 
places an exceptionally heavy burden on them if they 
are to succeed before this court. Not only does an appeal 
from a denial of injunctive relief require a showing that 
the trial court abused its discretion, Public Affairs As- 
sociates, Inc. v. Rickover, 369 U.S. Ill, 112 (1962); 
Hecht Co. v. Bowles, 321 U.S. 321 (1944) ; Meredith v. 
City of Winter Haven, 320 U.S. 228, 235 (1943); In- 
dependent Bankers Assoc, of America v. Smith, 534 F.2d 
921 (D.C. Cir.), cert, denied, 429 U.S. 862 (1976), but 
also the burden on these particular appellants is con- 
siderably heightened by the clear public interest in maxi- 
mizing the effectiveness of the investigatory powers of 
Congress. The welfare of the public is a factor to be 
weighed in determining whether or not to issue an in- 
junction, e.g., Yakus v. United States, 321 U.S. 414 
(1944) ; Hecht Co. v. Bowles, supra; Harrisonville v. 



236 



22 



W. S. Dickey Clay Mfg. Co., 289 U.S. 334 (1933); 
United States v. American Tobacco Co., 221 U.S. 10 
(1911), and the investigatory power is one that the 
courts have long perceived as essential to the successful 
discharge of the legislative responsibilities of Congress, 
McGrain v. Dougherty, supra. 

It would, then, require an extremely strong showing 
by the appellants to succeed in obtaining an injunction 
in light of the compelling public interest in denying such 
relief. Furthermore, there is no significant private in- 
jury present here to weigh against the public interest in 
unimpeded congressional investigation, see Ohio Oil Co. v. 
Conway, 279 U.S. 813 (1928); 7 J. Moore, Federal 
Practice fl65.18[3] at 65-138. Given the presumption 
of congressional propriety discussed above, see also, An- 
sara v. Eastland, supra — there is no risk of imminent 
injury to appellants. Injunctions, however, will not issue 
to prevent injuries neither extant nor presently threat- 
ened, but only merely "feared," Connecticut v. Massa- 
chusetts, 282 U.S. 660 (1931). To grant the injunction 
appellants request, this court would be required to in- 
terfere with the operation of Congress, and also to depart 
from traditional doctrine concerning the availability of 
equitable relief. Finding no justification for granting 
the relief requested by appellants, we affirm the judgment 
of the district court in its entirety. 

Judgment accordingly. 



In the United States District Court for the 

Northern District of Iowa 

Western Division 



No. C 77-4040 

Iowa Beef Processors, Inc., plaintiff, 

v. 

Patrick E. Gorman, Harry R. Poole, and Sam Ta- 
larico, as Representatives of the Members of 
Amalgamated Meat Cutters and Butcher Work- 
men of North America, AFL-CIO; Irving Stern; 
Albert J. Krieger; Lex Hawkins; John A. Coch- 
rane; Hughes A. Bagley; and Hans Aarsen, de- 
fendants. 



Order 



The matter before the court is the latest imbroglio of 
the parties. 1 Pending motions are: 

(1) Defendant John A. Cochrane's resisted motions to 
dismiss and for a protective order, both filed July 22, 
1977. Denied. 



1 The court has examined the transcript of the hearing before 
the Judicial Panel on Multidistrict Litigation (September 30, 1977) 
wherein Judge Weinfeld described this litigation as "a donnybrook 
* * * [and] a case of crimination and recrimination charges and 
counter-charges, and carrying with it the usual bitterness * * * 
[where] almost every question that is put to a witness would draw 
an objection". The record to date appears to support this assess- 
ment. 

(237) 



238 

(2) Defendant Lex Hawkins' resisted motions to dis- 
miss and for a protective order, both filed July 22, 1977. 
Denied. 

(3) Defendant Albert J. Krieger's resisted motion to 
dismiss filed August 15, 1977. Denied. 

(4) Plaintiffs resisted motion to enjoin a separate 
action filed in the United States Court for the Southern 
District of Iowa filed August 15, 1977. Denied. 

(5) Defendants Hawkins and Cochrane's resisted mo- 
tions to dismiss and for a protective order, both filed 
August 30, 1977. Denied. 

(6) Defendants Amalgamated Meat Cutters and 
Butcher Workmen of North America, AFL-CIO (Union), 
Patrick E. Gorman, Harry R. Poole, and Sam Talarico's 
resisted motion to dismiss filed September 6, 1977. 
Denied. 

(7) Plaintiffs resisted motion to compel production of 
documents filed September 8, 1977. Granted. 

(8) Defendant Irving Stern's resisted motion to dis- 
miss filed September 26, 1977. Denied. 

(9) Plaintiffs resisted motions for summary judgment, 
for a protective order and to compel discovery, all filed 
October 28, 1977. Granted and denied in part. 

(10) Defendants Hawkins and Cochrane's resisted 
motion to compel answers to deposition questions filed 
December 13, 1977. Granted and denied in part. 

In this diversity action plaintiff seeks damages and 
injunctive relief against defendants for their role in the 
alleged malicious inducement to breach and breach of a 
settlement agreement between plaintiff and defendant 
Hughes A. Bagley [Bagley], plaintiffs former Vice Presi- 
dent. 2 Plaintiff claims that Bagley met with the defend- 



2 The settlement agreement, summarized, compromised Bagley's 
compensation claims under his employment contract and released 
IBP from latent suits by Bagley in return for a release of Bagley 
from a covenant not to compete contained in his employment con- 
tract and a release of any cause of action IBP may have had to the 
time of the settlement agreement. 

Paragraph 3.2 of the covenant bound Bagley to refrain from 

assisting third-party litigation against IBP, stating: 

3.2. Bagley, for himself and heirs, legal representatives and 

assigns, covenants with IBP to forever refrain from aiding, 

Footnotes continued on next page 






239 

ants several times and provided copies of plaintiffs doc- 
uments, secured with the help of defendant Aarsen, to 
the defendant attorneys for the purpose of aiding anti- 
trust litigation pending against plaintiff in Texas, 
(M.D.L. No. 248). Plaintiff alleges that the conduct by 
Bagley violates both the terms of his settlement agree- 
ment and his fiduciary duty to the company and that it 
was knowingly and maliciously induced by various de- 
fendants who conspired to use the inside information to 
cause damage to IBP's business. 

Motion to Dismiss for Lack of Subject Matter 
Jurisdiction 

Plaintiff originally brought this suit against inter alia 
the Union as an entity. Defendants Hawkins and Coch- 
rane originally sought to dismiss for lack of diversity 
averring that the Union had many members of Nebras- 
ka citizenship, the citizenship of plaintiff. Plaintiff then 
amended its complaint to drop Amalgamated and add 
its three top officers as representatives of the union and 
its members. The purpose of the amendment as stated 
in plaintiffs brief was to "utilize * * * the procedure 
provided in Rule 23.2 of the Federal Rules of Civil Pro- 
cedure added in 1966 to avoid the absurdities created by 
the ancient doctrine that a labor union takes the citi- 
zenship of its members.* * *" 3 

Defendants Hawkins, Cochrane, Stern, Gorman, Poole 
and Talarico moved to dismiss, again on the basis of 



Footnotes continued from last page 

abetting or in any way assisting any third person not a party 
to this agreement in the bringing of any action or the prosecu- 
tion of any claim or demand of whatever kind or nature 
against IBP for any matter, fact, circumstances, happening or 
thing whatsoever occurring or failing to occur from the begin- 
ning of the world to the day of the date of these presents. 
Bagley hereby agrees that any breach of this covenant by him 
would not be adequately compensable in damages and agrees 
that, in the event of any breach by him of said covenant, IBP 
shall, in addition to any claim for damages for breach of cov- 
enant to which it may be entitled, be authorized and entitled 
to seek and obtain equitable relief by way of injunction or 
otherwise in a court of competent jurisdiction. 
3 IBP's opposition to the Hawkins and Cochrane Motion to Dis- 
miss, filed August 1, 1977, at 5. 



240 

lack of subject matter jurisdiction. Defendants contend 
that Rule 23.2 FRCP is not a class action rule and that 
the citizenship of all union members is still the relevant 
determinant of diversity. 

The question here is whether Rule 23.2 establishes a 
class action with respect to unincorporated organiza- 
tions thereby making the citizenship of the representa- 
tives of the class, together with the citizenship of plain- 
tiff, solely determinant of diversity. If the rule is a class 
action rule, jurisdiction is established since plaintiff and 
the representative parties are of diverse citizenship. If 
the rule is not a class action rule the court lacks juris- 
diction since it is undisputed that some members of the 
Union are of the same citizenship as plaintiff. 

The rule states: 

An action brought by or against the members of 
an unincorporated association as a class by naming 
certain members as representative parties may be 
maintained only if it appears that the representa- 
tive parties will fairly and adequately protect the 
interests of the association and its members. In the 
conduct of the action the court may make appropri- 
ate orders corresponding with those described in 
Rule 23(d), and the procedure for dismissal or com- 
promise of the action shall correspond with that 
provided in Rule 23(e). 

Wright & Miller and Moore agree that this rule pro- 
vides a mechanism for class action treatment of unin- 
corporated associations. 4 It is argued, however, that 
some courts have disagreed and held that the rule is 
merely a capacity-to-sue-or-be-sued provision to give 
entity treatment to an association. 5 The Advisory Com- 



4 See 7 A Wright & Miller, Federal Practice and Procedure: Civil 
§ 1861 (1972); 3B Moore, Federal Practice, fl 23.2.02 (2d ed. 1977). 

5 See Lee v. Navarro Savings Ass'n, 416 F. Supp. 1186, 1190 (N.D. 
Texas 1976); Suchem, Inc. v. Central Aguirre Sugar Co., 52 FRD 
348, 351 (D. Puerto Rico 1971). Lee and Suchem are distinguishable, 
however, because neither court found that unincorporated associ- 
ations did have entity status in Texas and Puerto Rico and there- 
fore Rule 23.2 was not available. The Iowa rule, applicable by 
operation of Rule 17(b) FRCP, holds that unincorporated associ- 
ations do not have entity status and cannot sue or be sued directly 

Footnotes continued on next page 



241 

mittee's Note to Rule 23.2 lends support to this latter 
interpretation. 6 

An examination of the rule itself and the writings of 
the commentors leads this court to conclude that Rule 
23.2 FRCP is a class action provision and that plaintiff 
may assert its claim against the union as a class. The 
rule itself incorporates by express reference portions of 
Rule 23 FRCP. 7 The requirements of numerosity, com- 
monality and typicality contained in Rule 23 may be 
subsumed implicitly into Rule 23. 2. 8 In any event they 
are present here. This is in fact a bona fide unincorpor- 
ated association and there is no suggestion that Rule 
23.2 was utilized to evade the constraints on the court's 
jurisdiction. 9 See 7 A Wright & Miller, Federal Practice 



Footnotes continued from last page 

in the absence of waiver or estoppel. See Boyer v. Iowa High School 
Athletic Ass'n, 138 NW2d 914, 915 (Iowa 1965). The language of 
Wilson & Co. v. United Packinghouse Wkrs. of America, 181 F. 
Supp. 809, at 817 (N.D. la. 1960) and Coughlon v. Iowa High School 
Athletic Ass'n, 150 NW2d 660, at 662 (Iowa 1967) put in context 
here, is not otherwise. Finding that Rule 23.2 is available, the issue 
before the court here was never addressed by Lee nor was it prop- 
erly before the court in Suchem. 

6 The Advisory Committee's Note states: 

Although an action by or against representatives of the 
membership of an unincorporated association has often been 
viewed as a class action the real or main purpose of this 
characterization has been to give "entity treatment" to the 
association when for formal reasons it cannot sue or be sued as 
a jural person under Rule 17(b). 
39 FRD 108 (1966). 

7 Defendants point out that the provisions for notice and plead- 
ing present in Rule 23 are absent from Rule 23.2. This absence may 
be explained by the fact that the problems of defining the class and 
giving notice to the class that plague Rule 23 class actions are 
minimized in the context of an unincorporated association where 
the class is fairly defined and notice easily obtained. 

8 See Merkey v. Board of Regents of State of Florida, 344 F. Supp. 
1296, 1303 (N.D. Fla. 1972) vacated on other grounds 493 F.2d 790 
(5th Cir. 1973). But see Management Television Systems, Inc. v. 
National Football League, 52 FRD 162, 164 (E.D. Pa. 1971). 7A 
Wright & Miller, supra; 3B Moore, supra. 

9 As defendants point out in Reply Brief filed October 7, 1977, 
at 8: 

It is well-settled that * * * [diversity] jurisdiction is availa- 
ble * * * in a traditional class action under Rule 23 where 

Footnotes continued on next page 



242 

and Procedure: Civil § 1861, at 461 (1972). Accordingly, 
this action is maintainable as a class action; the citizen- 
ship of the representative defendants and plaintiff are 
diverse; motion to dismiss for lack of subject matter 
jurisdiction denied. See generally Patrician Towers 
Owners, Inc. v. Fairchild, 513 F.2d 216, 220 (4th Cir. 
1975); Management Television Systems, Inc. v. National 
Football League, supra. 

Motion to Dismiss for Failure to State a Claim 
Upon Which Relief Can be Granted 

Defendants Hawkins, Cochrane, Krieger and Stern 
next move to dismiss for failure to state a claim for 
which relief can be granted. All complain of a lack of 
specificity and factual allegations — in the case of de- 
fendants Cochrane and Hawkins, as to the allegations 
in the complaint of breach of fiduciary duty and con- 
spiracy; in the case of defendant Krieger, as to the 
allegations in the complaint of inducing breach of con- 
tract; in the case of defendant Stern, as to all of the 
above. 

The standard for a motion to dismiss is that such a 
motion cannot be granted unless it appears to a certain- 
ty that plaintiff is entitled to no relief under any state 
of facts which could be proved in support of the claim. 
Cruz v. Beto, 405 U.S. 319, 322 (1972). In this light 
defendants' motions fail and are denied. 

Motion to Enjoin Prosecution of Separate Action in 
Lieu of Compulsory Counterclaim 

Plaintiff sought, by this motion, to prevent defendants 
Hawkins and Cochrane from pursuing an abuse of proc- 
ess action in the United States District Court for the 
Southern District of Iowa. However, since that action 
was dismissed by Judge Stuart on November 17, 1977, 
this motion is denied as moot. 



Footnotes continued from last page 

only the citizenship of class representatives is considered in 
determining whether diversity exists. See Montgomery Ward & 
Co. v. Longer, 168 F.2d 182 (8th Cir. 1948). 



243 

Motions for Protective Order and Motions to 

Compel 

A number of motions for protective orders and corre- 
sponding motions to compel have been filed in this 
action. In some instances the granting of one motion 
requires the denial of another. In each of these in- 
stances that result will be indicated. 

The first motions for protective orders were filed by 
defendants Cochrane and Hawkins on July 22, 1977. 
They were unaccompanied by an affidavit of good faith 
attempts at resolution by alternate means and the 
movants were notified that no further action would be 
taken until Rule 16E of the Local Rules was complied 
with. Cochrane and Hawkins filed essentially the same 
motion for protective order, with affidavit, on August 
30, 1977. The substance of the motion sought protection 
for documents subject to discovery requests in the anti- 
trust suit M.D.L. No. 248 until such time as the docu- 
ments are discoverable there. The motion also sought to 
protect documents alleged to be protected by the attor- 
ney-client privilege and work-product immunity. Final- 
ly, incorporating by reference a response to a request 
for production of documents, the defendants refused to 
produce requested documents so long as their motions 
to dismiss remained outstanding. Plaintiffs response 
was to move to compel production of those documents 
contained in its first request. 

The overriding rationale applied with respect to all 
discovery motions is that discovery provisions are to be 
broadly and liberally construed. Hickman v. Taylor, 329 
U.S. 495, 507 (1947); accord Schlagenhauf v . Holder, 379 
U.S. 104, 114-15 (1964). Taking defendants' last claim 
first, it is clear that this matter has been resolved by 
the court's ruling today. As to the claim that the docu- 
ments are protected by work-product immunity and at- 
torney-client privilege the court concludes that a blan- 
ket invocation of these doctrines to bar discovery is 
inappropriate. In this case, where state law supplies the 
rule of decision, Rule 501 FREv, the burden of establish- 
ing attorney-client privilege is on the defendants. Bailey 
v. Chicago, Burlington & Quincy Railroad Co., 179 
NW2d 560, 564 (Iowa 1970). That burden cannot be met 



244 

by resort to a privilege incantation. The assertion must 
be document-specific with a sufficient articulation of the 
underlying circumstances and general substance, and 
identification of the parties involved, to establish a 
prima facie showing of privilege. This standard applies 
to the assertion of work-product immunity as well. In 
this instance defendants have not borne this burden. 

The claim that defendants are protected from discov- 
ery requests pending in MDL No. 248 until the docu- 
ments are allowed to be discovered in that action 
cannot be accepted. The effect of an assent to this idea 
would subordinate this action and ancillary discovery 
matters to another case filed in another district court. 
Discovery here cannot be predicated on what that court 
will do. However, this does not mean that the court is 
insensitive to the potential for interference with the 
conduct of orderly discovery in MDL No. 248. All par- 
ties have indicated that a voluminous amount of materi- 
als are subject to requests for discovery here. Bearing 
this in mind, together with the potential for interfer- 
ence with MDL No. 248, the court orders defendants 
Hawkins and Cochrane to comply with plaintiffs first 
request for production of documents 10 by producing the 
documents in the usual manner or by affording plaintiff 
a reasonable opportunity to examine, audit, or inspect 
such records and to make copies, compilations, ab- 
stracts, or summaries at the place where the records 
are kept or at any other mutually agreed-upon place. 
Cf. Rule 33(c) FRCP. In the event discovery of the mate- 
rials in this fashion results in undue interference with 
MDL No. 248 suitable protection may be obtained from 
this court on & particularized showing. 

Plaintiff moved for a protective order on October 28, 
1977, prohibiting defendants' inquiry into matters alleg- 
edly protected by attorney-client privilege, prohibiting 
inquiry into purported illegal acts by plaintiff, and re- 
stricting use of IBP business information to defense 
counsel for purposes of this case and to Cochrane and 



10 The court notes that defendants maintain that they have no 
documents falling within Specification No. 6 of plaintiffs first re- 
quest for production of documents. On this representation defend- 
ants need not comply. 



245 

Hawkins for the purposes of MDL No. 248. The court 
grants the protective order limiting the usage of IBP's 
confidential business information and denies the motion 
regarding the claim of attorney-client privilege and the 
claim of the irrelevance of illegal acts. 

Plaintiff falls prey to the same lack of specificity that 
defendants Hawkins and Cochrane do regarding a claim 
of attorney-client privilege. A mere recitation of the 
privilege litany is insufficient. The standards applicable 
to meeting the burden of establishing a privilege set out 
above apply here. Plaintiff cannot meet that burden by 
requesting protection from inquiry into "matters pro- 
tected by IBP's attorney-client privilege" . 

The court also rejects the claim that illegal acts by 
IBP are irrelevant to the case. The claim that the cov- 
enant between IBP and Bagley was intended to conceal 
illegal acts is central to defendants' case. A relevance 
objection is unavailing in this context. 11 

Defendants Cochrane and Hawkins filed a motion to 
compel answers to questions propounded during an oral 
deposition of William L. Heubaum, corporate counsel 
for IBP. The Court has examined the questions and the 
context in which they were asked. It seems apparent 
that work-product immunity or the attorney-client 
privilege is applicable to the information sought. 12 De- 
fendants, however, seek to overcome the immunity or 
privilege by invoking the improper purpose exception. 13 

11 Plaintiff would have the court determine in the guise of a 
protective order, in addition to its motion for summary judgment 
discussed infra, that the Bagley covenant does not offend public 
policy. The court is not willing to make that determination at this 
stage of the litigation. 

12 This is not true as to all information sought, for example, 
counsel for IBP claimed attorney-client privilege as to the number 
and bulk of file drawers regarding antitrust at Heubraum's office 
(Heubaum deposition, Volume I at 146-147) and as to whether 
certain documents, oftentimes the contents of which were disclosed, 
were sent to IBP's attorneys (Heubaum deposition, Volume I at 
155, 210-213). This information is clearly not privileged. 

13 Defendants also invoke the general rule that privilege does not 
lie when business, as opposed to legal, counsel is sought. Though it 
may be true that a corporation cannot merely utilize general coun- 
sel as a conduit to protect all its documents and other information 

Footnotes continued on next page 



246 

Defendants' burden in this respect is heavy — they must 
make a prima facie showing that the information 
sought was transmitted in furtherance of a crime or 
tort. Pfizer, Inc. v. Lord, 456 F.2d 545, 549 (8th Cir. 
1972). See In re Murphy, 560 F.2d 326, 338 (8th Cir. 
1977). Defendants assert that u [t]he testimony in the 
present case * * * establishes conclusively the existence 
of antitrust violations by IBP". This assertion is exag- 
gerated. In any event defendants must make a prima 
facie showing that the communication was pursuant to 
the crime or tort. See In re Murphy, supra. No such 
showing has been made. Except as noted herein, the 
motion to compel answers is denied. 

Plaintiff moved to compel defendant Bagley to answer 
deposition questions which he has refused to answer on 
grounds of attorney-client privilege. An examination of 
the questions reveals that the information sought would 
be privileged. Plaintiff maintains, however, that the 
privilege was waived by Bagley's answer, paragraph 10, 
which allegedly injects a state-of-mind issue into the 
case. That paragraph states in part: 

It is affirmatively alleged that paragraph 3.2 of 
the Settlement Agreement was obtained by fraud 
and misrepresentation on the part of IBP. 

Since this response does inject the question of reliance 
on IBP's statements or acts 14 Bagley cannot now pre- 
vent inquiry directed to that issue. This information is 
vital to plaintiff to meet Bagley's affirmative defense of 
fraud and misrepresentation. See Haymes v. Smith, 73 
FRD 572, 577 (W.D.N.Y. 1976); Hearn v. Rhay, 68 FRD 
574, 581 (E.D. Wash. 1975). Defendant Bagley is directed 
to answer questions relevant to the question of reliance; 
the attorney-client privilege is waived. 



Footnotes continued from last page 

it is also true that defendants have not shown in even the slightest 
degree that this activity has occurred here. Merely noting that 
Heubaum serves Iowa Beef as Secretary and Vice President as well 
as general counsel is insufficient. 

"See 37 Am. Jur. 2d, Fraud and Deceit §223 et seq.; cf. W. 
Prosser, Torts, 714 et seq. (4th ed. 1971). 



247 

Motion for Summary Judgment 

IBP moves for summary judgment against Bagley on 
the question of liability for breach of the settlement 
agreement with IBP and for violation of the fiduciary 
duty allegedly owed by IBP. 

IBP has a particularly heavy burden of persuasion — 
the movant must show that there is no genuine issue of 
any material fact and that it is entitled to judgment as 
a matter of law. Rule 56(c) FRCP; see Poller v. Columbia 
Broadcasting System, Inc., 368 U.S. 464, 467 (1962). The 
court is required to review the facts in the light most 
favorable to the party opposing the motion and to give 
to that party the benefit of all reasonable inferences to 
be drawn from the facts. Adickes v. S. H. Kress & Co., 
398 U.S. 144, 158-59 (1970). The court cannot say, at 
this point in the litigation, that there is no genuine 
issue of material fact, furthermore, though IBP at- 
tempts to de-emphasize the importance of the motion by 
carefully limiting it to Bagley, the preclusive effect of 
the ruling, if only from a reasoning standpoint, is ap- 
parent. The court considers it inappropriate at this time 
to resolve this issue and therefore a major portion of 
the lawsuit. Further discovery and a vigorous analysis 
of the relevant legal principles might make summary 
judgment feasible in the future. 

It is therefore ORDERED 

1. Motions 1-6 inclusive and 8 above are denied. 

2. Motion 7 is granted. 

3. Motions 9 and 10 granted and denied in part. 
February 10, 1978. 

Edward J. McManus, Chief Judge, 

United States District Court. 



In the United States District Court for the 

Northern District of Iowa 

Western Division 



No. C 77-4040 
Iowa Beef Processors, Inc., plaintiff, 

v. 

Patrick E. Gorman, Harry R. Poole, and Sam Ta- 
larico, as Representatives of the Members of 
Amalgamated Meat Cutters and Butcher Work- 
men of North America, AFL-CIO; Irving Stern; 
Albert J. Krieger; Lex Hawkins; John A. Coch- 
rane; Hughes A. Bagley; and Hans Aarsen, 

DEFENDANTS. 



Order 



This matter is before the court on Iowa Beef Proces- 
sors, Inc.'s unresisted motion to have certain documents 
filed under seal with the court, filed October 13, 1978, 
and defendant Hughes A. Bagley's resisted motion to 
lift protective order or in the alternative for guidelines, 
filed November 1, 1978. 

The thrust of the motions involve an attempt by the 
Small Business Subcommittee on SBA and SBIC author- 
ity and General Small Business Problems of the House 
of Representatives (Committee) to secure access to cer- 
tain documents produced by defendant Bagley pursuant 

(249) 



250 

to plaintiffs first request for documents and which are 
presently under a protective order issued by this court. 

Specifically, on February 13, 1978 this court granted 
IBP's motion for protective order restricting the use of 
Bagley's discovery material to counsel in this case for 
the purposes of this case and the Beef Industry Anti- 
trust Litigation now pending in Dallas, Texas. The basis 
on which the protective order was originally issued was 
that the documents contained confidential information 
concerning IBP's business practices, etc. which would be 
detrimental to IBP's business if given to competitors. 

From a review of the record it is the view of the court 
that the protective order should be modified as to the 
documents requested. The court can ascertain no great 
interference with its ability to proceed in this suit if the 
committee is allowed access to the records and the right 
to copy them as long as the originals still remain acces- 
sible to the parties to prosecute this action. IBP is free 
to approach the committee as to the scope of the use of 
the documents. 

It is therefore ORDERED 

This court's protective order is modified to allow de- 
fendant Hughes A. Bagley to comply with the commit- 
tee subpoena served upon him in this action. 

November 22, 1978. 

Edward J. McManus, Chief Judge, 

United States District Court 

Copies mailed Certified, Return Receipt Requested, on 11-24-78 to: 
D. Douglas Titus, 510 Benson, Building, Sioux City, Iowa 51101; 
Edward W. Rothe and James T. Malysiak, One IBM Plaza, Suite 
3200, Chicago, 111. 60611; Richard Watt and Irving King, Room 4750 
IBM Plaza, Chicago, 111. 60611; Harry H. Smith, 632 Badgerow Bldg., 
Sioux City, Iowa 51101; Marvin F. Heidman, P.O. Box 3086, Sioux 
City, Iowa 51102; Wm. J. Rawlings, 300 Toy Nat'l. Bank Bldg., Sioux 
City, Iowa 51101; John J. Greer, Professional Bldg., Spencer, Iowa 
51301; Frederick S. Nordenson, 436 Davidson Bldg., Sioux City, Iowa 
51101; Stephen M. Glynn, 222 E. Mason St., Milwaukee, Wis. 53202; 
Harold I. Cammer, 9 East 40th St., New York, N.Y. 10016; and John 
M. Fitzgibbons, Special Counsel, Committee on Small Business, U.S. 
House of Representatives, 2361 Rayburn House Office Bldg., Wash- 
ington, D.C. 20515. 

E. C. Henriksen, Deputy. 



United States Court of Appeals for the Eighth Circuit 



No. 78-1855 
Iowa Beef Processors, Inc., appellant, 

v. 

Hughes A. Bagley, appellee. 

Appeal from the United States District Court for the 
Northern District of Iowa 



Submitted: December 12, 1978 

Filed: December 14, 1978 

Before Bright, Henley and McMillian, Circuit Judges 

Per Curiam 

This case comes before the court on motion of Iowa 
Beef Processors, Inc. (IBP) for a stay pending appeal 
and for other suitable orders in the nature of extraordi- 
nary writs which would preserve appellate jurisdiction. 
We deny the stay and decline to issue such orders. 

This case is the most recent manifestation of a 
lengthy, and increasingly acrimonious, course of litiga- 
tion involving IBP. IBP has been the subject of numer- 
ous private antitrust suits in recent years. Several of 
these lawsuits have been brought by members of a 
group calling themselves the Meat Price Investigators 
Association and have been pursued by two lawyers, Lex 

(251) 



252 

Hawkins and John Cochrane. The Judicial Panel on 
Multidistrict Litigation transferred a number of these 
private antitrust cases to the United States District 
Court for the Northern District of Texas for consoli- 
dated pretrial proceedings. See In Re Beef Industry 
Antitrust Litigation, 432 F.Supp. 211 (Jud. Pan. Mult. 
Lit. 1977); In Re Beef Industry Antitrust Litigation, 419 
F.Supp. 720 (Jud. Pan. Mult. Lit. 1976). As part of the 
discovery proceedings in these Texas cases, the district 
court entered a protective order prohibiting attorneys 
Cochrane and Hawkins, among others, from disclosing 
the contents of documents obtained through discovery 
on the defendants, including IBP. It appears that some 
of these documents are the same as the documents in 
question in this case. 

The instant litigation was begun by IBP in the North- 
ern District of Iowa on August 1, 1977. IBP sued a 
number of defendants including Hawkins, Cochrane, 
and one Hughes A. Bagley, a former vice president of 
IBP. IBP's complaint alleged that Bagley had taken a 
number of documents with him when he left IBP's 
employ in 1975 and that these documents contained 
confidential business information which would damage 
IBP's business if they were disclosed. The complaint 
further alleged that Bagley had disclosed certain confi- 
dential information and records to Hawkins, Cochrane, 
and others in violation of various contractural obliga- 
tions and common law fiduciary duties. The case was 
referred to the docket of Chief Judge McManus who on 
February 13, 1978, issued an order deciding a number of 
petrial motions. The order granted IBP's motion for a 
protective order preventing disclosure of IBP's confiden- 
tial business information and limiting its use to defense 
counsel and to Hawkins and Cochrane for the purposes 
of the consolidated Texas cases. 

Over a period of time, it appears that the House 
Subcommittee on SBA and SBIC Authority and General 
Small Business Problems (the Subcommittee) of the 
House Committee on Small Business has become inter- 
ested in alleged price-fixing or other antitrust violations 
in the meat industry. In that connection, the Subcom- 



253 

mittee served Hawkins and Cochrane with congres- 
sional subpoenas duces tecum compelling them to pro- 
duce a number of documents, including some which 
were subject to the protective order issued in connection 
with the consolidated Texas cases. Hawkins and Coch- 
rane moved to dissolve the protective order. The motion 
was denied by United States District Judge William M. 
Taylor, who held that the Subcommittee's attempt to 
subpoena the documents covered by the protective order 
violated the due process clause. In Re Beef Industry 
Antitrust Litigation, 1978-2 Trade Cases ff 62,189 (N.D. 
Tex. August 17, 1978). Judge Taylor's decision is cur- 
rently on appeal to the Fifth Circuit. 

Frustrated to this point in its efforts to obtain this 
material in the Texas proceedings, the Subcommittee 
changed tactics. In late October, 1978 it served a similar 
subpoena duces tecum on Bagley, requiring him to pro- 
duce a number of documents covered by Judge 
McManus' protective order. Bagley moved to dissolve 
the protective order and IBP opposed the motion. By 
order filed November 24, 1978, Judge McManus granted 
Bagley's motion and lifted the protective order to the 
extent necessary to allow Bagley to comply with the 
subpoena. 

John M. Fitzgibbons, Special Counsel to the Subcom- 
mittee, was apprised of Judge McManus' order in a 
telephone conversation the same day. On November 27 
a Subcommittee investigator, Nick Wultich, appeared at 
the offices of Bagley's counsel and took physical posses- 
sion of seven boxes of documents. 

IBP's counsel learned of the order on November 28, 
and subsequently learned that the Subcommittee had 
acquired the documents. On November 30 IBP filed a 
notice of appeal from the order lifting the protective 
order. On December 4 IBP filed this motion for a stay 
and other appropriate relief. By order dated December 4 
Judge Henley stayed the district court order pending a 
hearing before a panel of the court and recited an 
agreement whereby the Subcommittee and its staff 
would take no action with respect to the documents 



254 

until, and including, December 16. The matter came on 
for a hearing before this panel on December 12. 

Having carefully considered the papers and oral argu- 
ments submitted by IBP and the Subcommittee, whose 
Special Counsel appeared specially, we are of the opin- 
ion that a stay of the district court order is both inap- 
propriate and unnecessary at this time. 

We begin by noting the very limited scope of Judge 
McManus' order. The protective order of February 13 
remains in effect as to all other parties to the litigation 
and as to any disclosure by Bagley other than as neces- 
sary to comply with the subpoena. 

In regard to the disclosure to the Subcommittee, it 
has represented in its papers filed in this court and 
during oral argument that it has no intention of 
making public any of these documents, if ever, until 
after the House of Representatives begins its next ses- 
sion in January, 1979. In good faith, we must accept 
these representations made by members of a coordinate 
branch of government at face value. We are further 
assured that the Subcommittee and its Special Counsel 
will take all appropriate precautions to insure that 
these documents are disclosed only to the extent neces- 
sary to allow the Subcommittee staff to begin the job of 
collating and classifying the information contained 
therein. In present circumstances any disclosure beyond 
the immediate needs of the Subcommittee and its staff 
would appear to be both unnecessary and a matter of 
grave import for all concerned. 

Given the Subcommittee's representations to us and 
the limited nature of Judge McManus' order, we are of 
the opinion that granting a stay and compelling the 
return of the documents at this time is both unneces- 
sary as a practical matter and inappropriate as a 
matter of comity. Such action would inevitably, albeit 
erroneously, be viewed as an expression of our lack of 
faith in the Subcommittee's representations to us. Such 
an expression would be particularly inappropriate in 
view of the subcommittee's past cooperation with this 
court. 



255 

We are aware that this case presents serious jurisdic- 
tional and substantive questions and implicates funda- 
mental concepts of legislative and judicial authority. 
Accordingly, we deem it appropriate that the case be 
heard on an expedited basis. The case will be scheduled 
for argument on the merits on January 9, 1979, and the 
Clerk is directed to work out an appropriate briefing 
schedule with the parties. 

The motion for a stay pending appeal and for other 
appropriate relief is denied. 

A true copy. 

Attest: 

Clerk, U.S. Court of Appeals, Eighth Circuit. 



Notice: This opinion is subject to formal revision before publication 
in the Federal Reporter or U.S.App.D.C. Reports. Users are requested 
to notify the Cierk of any formal errors in order that corrections may be 
made before the bound volumes go to press. 



•Utttttfi §>M? b Glourt of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 



No. 77-2123 



The Reporters Committee for Freedom of the Press, 

American Historical Association, 

American Political Science Association, 

James MacGregor Burns, Nat Hentoff, 

Donald G. Herzberg, William Leuchtenburg, 

Arthur Link, J. Anthony Lukas, Austin Ranney 

and Clement E. Vose, appellants 

v. 

Arthur F. Sampson, Individually and as 
Administrator of General Services, et al. 



No. 77-2124 

Lillian Hellman, et al. 

v. 

Arthur Sampson, General Services Administration, 

et al. 

The Reporters Committee for Freedom of the Press, 
et al., appellants 



Bills of costs must be filed within 14 days after entry of judgment. The 
court looks with disfavor upon motions to file bills of costs out of time. 

(257) 



258 



No. 77-2125 



Richard M. Nixon, Individually and as the Former 
President of the United States, et al. 

v. 

Arthur F. Sampson, Individually and as 
Administrator of General Services, et al. 

The Reporters Committee for Freedom of the Press, 
et al., appellants 



Appeals from the United States District Court 
for the District of Columbia 

(D.C. Civil Nos. 74-1533, 74-1551 and 74-1518) 



Argued October 31, 1978 
Decided December 21, 1978 

Leonard B. Simon, with whom Robert E. Herzstein, 
Andrew S. Krulwich, Mark J. Spooner, and Peter T. 
Grossi f Jr., were on the brief, for appellants. 

Steven I. Frank, Attorney, Department of Justice, a 
member of the bar of the Supreme Court of Texas, pro 
hac vice, by special leave of court, with whom Earl J. 
Silbert, United States Attorney, Barbara Allen Babcock, 
Assistant Attorney General, and Leonard Schaitman, At- 
torney, Department of Justice, were on the brief, for 
federal appellees. 

R. Stan Mortenson, with whom Herbert J. Miller, Jr., 
was on the brief, for appellee Nixon. 

William A. Dobrovir entered an appearance for appel- 
lee Jack Anderson. 






259 



3 

Richard J. Bacigalupo, Charles S. Rhyne, and William 
S. Rhyne entered appearances for appellee Rose Mary- 
Woods. 

Before Wright, Chief Judge, J. Edward Lumbard,* 
Senior Circuit Judge for the Second Circuity and Tamm, 
Circuit Judge. 

Opinion for the court filed by Circuit Judge Tamm. 

Tamm, Circuit Judge: Appellants here, plaintiffs be- 
low, seek access through the Freedom of Information Act 
(FOIA), 5 U.S.C. §552 (1976), to Richard Nixon's 
presidential materials, which are in the control of the 
General Services Administration (GSA) pursuant to title 
I of the Presidential Recordings and Materials Preserva- 
tion Act (the Materials Act), note following 44 U.S.C. 
§2107 (Supp. V 1975) ; they also request a declaration 
that the government owns the materials. The district 
court granted the government defendants' motion to dis- 
miss the plaintiffs' action on the ground that passage of 
the Materials Act rendered it moot. Nixon v. Sampson, 
437 F. Supp. 654, 656 (D.D.C. 1977). We reverse and 
remand for proceedings not inconsistent with this opinion. 



Richard Nixon resigned his office as President of the 
United States on August 9, 1974. On September 8, 1974, 
the same day that President Gerald Ford pardoned Mr. 
Nixon, the White House released the text of an agree- 
ment between Mr. Nixon and Arthur Sampson, Adminis- 
trator of the GSA, concerning Mr. Nixon's presidential 
materials. 1 Under the terms of the agreement, Mr. Nixon 
retained all legal and equitable title to the materials and 
the GSA agreed to house them. Access to the materials 



* Sitting by designation pursuant to 28 U.S.C. § 294(d). 

a £ee 10 Weekly Comp. of Pres. Doc. 1104, 1108-09 (Sept. 
8, 1974) ; Nixon v. Sampson, 389 F. Supp. 107, 160-62 (D.D.C. 
1975) (Appendix A). 



260 



was strictly limited. Mr. Nixon agreed to deposit mate- 
rials other than the tape recordings described below for 
three years, during which no one could gain access with- 
out his approval. Mr. Nixon reserved the right to with- 
draw any materials he desired after three years. Tape 
recordings of White House or Executive Office Building 
conversations were to remain on deposit until September 1, 
1979, and access was limited to persons approved by the 
former President. After September 1, 1979, GSA agreed 
to destroy tape recordings upon Mr. Nixon's request. 
Finally, all tape recordings were to be destroyed when 
Mr. Nixon died, or on September 1, 1984, whichever event 
occurred first. 

On October 17, 1974, Mr. Nixon brought a suit seeking 
a temporary restraining order and preliminary injunction 
to enforce the Nixon-Sampson agreement. 2 Four days 
later, Jack Anderson, a journalist whose FOIA request 
for presidential materials had been denied on the basis 
of the Nixon-Sampson agreement, intervened to prevent 
implementation of the agreement. 3 Also on October 21, 
1974, the Reporters Committee for Freedom of the Press, 
et al., 4 appellants here, filed suit seeking to restrain the 
agreement and to obtain access to the materials pursuant 
to the FOIA. 5 Three days later, Lillian Hellman and 



2 See Nixon v. Sampson, CA. No. 74-1518 (D.D.C. filed 
Oct. 17, 1974). 

3 See Nixon v. Sampson, 389 F. Supp. at 117. 

4 Appellants include The Reporters Committee for Freedom 
of the Press, American Historical Association, American 
Political Science Association, James MacGregor Burns, Nat 
Hentoff, Donald G. Herzberg, William Leuchtenburg, Arthur 
Link, J. Anthony Lukas, Austin Ranney and Clement E. Vose. 

5 Reporters Committee for Freedom of the Press v. Samp- 
son, C.A. No. 74-1533 (D.D.C. filed Oct. 21, 1974) ; see Ap- 
pendix (App.) at 20 (Complaint of the Reporters Committee 
for Freedom of the Press, et al.). For a description of the 
FOIA request, see id. at 45-49. 



261 



other members of the Committee for Public Justice, filed 
a similar action which sought specified presidential tape 
recordings. 6 All of these actions were consolidated. 

On December 19, 1974, President Ford signed into law 
the Presidential Recordings and Materials Preservation 
Act, which included a provision giving the United States 
District Court for the District of Columbia exclusive 
jurisdiction to hear any challenges to the constitutionality 
of title I of the Act. 7 Mr. Nixon immediately filed a suit, 
Nixon v. Administrator,* to enjoin the operation of the 
Materials Act and asked that a three- judge court be con- 
vened to hear his constitutional challenges. 

Before Mr. Nixon's request was acted upon, the district 
court issued an opinion in the consolidated cases, Nixon 
v. Sampson, 389 F. Supp. 107 (D.D.C. 1975), but entry 
of the order implementing the opinion was stayed by this 



6 Hellman v. Sampson, C.A. No. 74-1551 (D.D.C. filed Oct. 
24,1974). 

7 Section 105(a) of the Presidential Recordings and Mate- 
rials Preservation Act (the Materials Act) , note following 44 
U.S.C. §2107 (Supp. V 1975), provides: 

The United States District Court for the District of 
Columbia shall have exclusive jurisdiction to hear chal- 
lenges to the legal or constitutional validity of this title 
or of any regulation issued under the authority granted 
by this title, and any action or proceeding involving the 
question of title, ownership, custody, possession, or con- 
trol of any tape recording or material referred to in sec- 
tion 101 or involving payment of any just compensation 
which may be due in connection therewith. Any such 
challenge shall be treated by the court as a matter re- 
quiring immediate consideration and resolution, and such 
challenge shall have priority on the docket of such court 
over other cases. 

8 C.A. No. 74-1852 (D.D.C. filed Dec. 20, 1974). 



262 



court pending the convening of a three-judge court. 9 
The three-judge court held that the Materials Act 
was facially constitutional, 10 and the Supreme Court 



9 Prior to the issuance of the district court's opinion in 
Nixon v. Sampson, this court denied Mr. Nixon's petition for 
mandamus to require the district judge to act immediately on 
his request for a three-judge court pursuant to 28 U.S.C. 
§ 2282 (1970) and to give the constitutional challenge priority 
over a decision in the consolidated cases. Although this court 
denied Mr. Nixon's petition, it ordered the district court to 
consider the three-judge question before taking further action 
on the consolidated cases. Nixon v. Richey, 513 F.2d 427, 430 
(D.C. Cir. 1975) (per curiam). The same day, the district 
court judge issued an opinion in the consolidated cases, Nixon 
v. Sampson, 389 F. Supp. 107 (D.D.C. 1975), but the entry 
of the order was stayed. See Nixon v. Richey, 513 F.2d 430, 
432 (D.C. Cir. 1975) (per curiam). A three-judge court was 
subsequently convened and the court in Nixon v. Richey 
directed that the stay be continued until the three-judge court 
asked it to be lifted, or until the three-judge court reached a 
decision. 513 F.2d at 448. The original district court judge 
thereafter recused himself from participation in the consoli- 
dated cases, and another district judge was assigned to them. 
App. at 13. That district judge later refused a request that he 
enter judgment in accord with the original Nixon v. Sampson 
opinion. Nixon v. Sampson, 437 F. Supp. 654, 655 n.5 (D.D.C. 
1977). 

10 The three-judge court noted that regulations had yet to 
be promulgated pursuant to the access provision of the Ma- 
terials Act, section 104(a), note following 44 U.S.C. §2017 
(Supp. V 1975), which provides: 

The Administrator shall, within ninety days after the 
date of enactment of this title [Dec. 19, 1974], submit to 
each House of the Congress a report proposing and ex- 
plaining regulations that would provide public access to 
the tape recordings and other materials referred to in 
section 101. Such regulations shall take into account the 
following factors : 

(1) the need to provide the public with the full 

truth, at the earliest reasonable date, of the abuses 

[Footnote continued on page 7] 



263 



10 [Continued] 

of governmental power popularly identified under 
the generic term "Watergate" ; 

(2) the need to make such recordings and mate- 
rials available for use in judicial proceedings; 

(3) the need to prevent general access, except in 
accordance with appropriate procedures established 
for use in judicial proceedings to information relat- 
ing to the Nation's security ; 

(4) the need to protect every individual's right to 
a fair and impartial trial ; 

(5) the need to protect any party's opportunity 
to assert any legally or constitutionally based right 
or privilege which would prevent or otherwise limit 
access to such recordings and materials; 

(6) the need to provide public access to those 
materials which have general historical significance, 
and which are not likely to be related to the need 
described in paragraph (1) ; and 

(7) the need to give to Richard M. Nixon, or his 
heirs, for his sole custody and use, tape recordings 
and other materials which are not likely to be re- 
lated to the need described in paragraph (1) and are 
not otherwise of general historical significance. 

See Nixon v. Administrator, 408 F. Supp. 321, 335 (D.D.C. 
1976). The court, therefore, explicitly did not decide "consti- 
tutional claims directed at the regulations . . . that the promul- 
gation of regulations might eliminate, limit, or cast in a dif- 
ferent light." Id. at 336. The GSA, after three unsuccessful 
attempts, finally promulgated regulations that were not dis- 
approved by one House of Congress pursuant to section 104 
(b) (2) ("The Administrator may not issue any regulation 
or make any change in a regulation if such regulation or 
change is disapproved by either House of Congress under this 
subsection."). See Nixon v. Warner Communications, Inc., 
435 U.S. 589, 605-06 n.16 (1978). The final regulations ap- 
pear at 42 Fed. Reg. 63626 (1977). Mr. Nixon has chal- 
lenged the regulations. Nixon v. Solomon, C.A. No. 77-1395 
(D.D.C. filed Aug. 10, 1977). 



37-148 O - V 



264 



8 



affirmed. 11 Nixon v. Administrator, 408 F. Supp. 321 
(D.D.C. 1976), afd, 433 U.S. 425 (1977). 

After the Supreme Court's decision, attention turned 
again to the consolidated cases, Nixon v. Sampson. The 
government defendants moved to dismiss the actions as 
moot in light of Nixon v. Administrator. Appendix at 
67. The district court granted the motion, Nixon v. 
Sampson, 437 F. Supp. at 656. The district court held 
that the Materials Act's access provisions mooted the re- 
quests for presidential materials under the FOIA and 
the Materials Act's provision guaranteeing the govern- 
ment's custody and control of the materials mooted the 
ownership issue. Id. at 655-56. Mr. Nixon, who sup- 
ported the government defendants' motion to dismiss, id. 
at 655 n.5, joins those defendants as an appellee in this 
challenge to the district court's decision. 

II 

Appellees argued in the district court that the Materials 
Act provides the exclusive means for obtaining access to 
the recordings and materials. Appellants point to the 
language of section 104(d) of the Materials Act to sup- 
port their contention that their FOIA requests should 
proceed. Section 104(d), note following 44 U.S.C. § 2107 
(Supp. V 1975), provides: 



11 Like the district court, the Supreme Court limited its 
consideration to those constitutional claims "addressing the 
facial validity of the provisions of the Act requiring the 
Administrator to take the recordings and materials into the 
Government's custody subject to screening by Government 
archivists." Nixon v. Administrator, 433 U.S. 425, 439 (1977). 
In affirming the district court, the Supreme Court rejected 
constitutional claims based on separation of powers, presiden- 
tial privilege, right of privacy, right of associational privacy 
and political speech, and the bill of attainder clause. Id. at 
439-484. 



265 



The provisions of this title shall not in any way- 
affect the rights, limitations or exemptions applicable 
under the Freedom of Information Act, 5 U.S.C. 
§ 552 et seq. 

In spite of the seemingly clear language of section 104 (d), 
appellees contend that various principles of statutory 
construction mandate that the Materials Act be inter- 
preted to block these FOIA requests. 12 However, "even 
the most basic general principles of statutory construction 
must yield to clear contrary evidence of legislative in- 



12 The government appellees invoke the principle of Brown 
v. GSA, 425 U.S. 820, 834 (1976), which states that "a pre- 
cisely drawn, detailed statute pre-empts more general reme- 
dies," to reach its conclusion that the particular terms of the 
Act provide the exclusive access to these presidential mate- 
rials. Brown v. GSA held that section 717 of the Civil 
Rights Act of 1964 provides the exclusive judicial remedy 
for claims of discrimination in federal employment. Id. at 
835. The Supreme Court was forced to resort to principles 
of statutory interpretation because "Congress simply failed 
explicitly to describe § 717's position in the constellation of 
antidiscrimination law." Id. at 825. Here Congress has ex- 
plicitly related the operation of the FOIA to the Materials 
Act. 

The government appellees also argue that allowing FOIA 
requests to proceed would lead to an absurd result incom- 
patible with the structure of the Materials Act. However, we 
believe that the existence of an alternate method of access is 
completely compatible with Congress's intent to guarantee 
that materials from the Nixon presidency were available to 
the public; see 120 CONG. Rec. at 33971-72 (1974) (remarks 
of Sen. Nelson) ; id. at 33855 (remarks of Sen. Ervin) ; id. at 
37900-01 (remarks of Rep. Brademas) ; id. at 37905 (remarks 
of Rep. McKinney) ; H. Rep. No. 93-1507, 93d Cong., 2d Sess. 
2 (1974). After all, when the Materials Act was passed, Con- 
gress could well have believed that the FOIA would not cover 
all of Mr. Nixon's materials that related to Watergate or were 
of general historical interest. See 5 U.S.C. § 552(e) (1976) ; 
S. Rep. No. 93-1200, 93d Cong., 2d Sess. 15 (1974) ; Soucie 
v. David, 448 F.2d 1067, 1072-76 (D.C. Cir. 1971). 



266 



10 



tent." National Railroad Passenger Corp. v. National 
Association of Railroad Passengers, 414 U.S. 453, 458 
(1974). See Neuberger v. Commissioner, 311 U.S. 83, 88 
(1940). Accordingly, -we have examined the legislative 
history of section 104(d) and we conclude that the Ma- 
terials Act does not bar processing of FOIA requests for 
the presidential materials in question. 

Section 104(d) had its genesis in the report of the 
House Committee on House Administration, 15 which sub- 
stituted a House version of the Materials Act for that 
passed by the Senate. 14 The report explicitly stated that 
none of the Materials Act's provisions regarding access 
to materials "are intended to limit access by the public, 
otherwise granted by the Freedom of Information Act." 15 
When the bill was returned to the Senate, Senator Nel- 
son offered a floor amendment to codify the expressed 
intent of the House Committee. The amendment became 
section 104(d). 120 Cong. Rec. 38532 (1974). In the 
subsequent House debate that preceded approval of the 
Senate amendment, Representative Brademas explained 
that the amendment "is intended to make clear that ac- 
cess to the material which may otherwise be authorized by 
the Freedom of Information Act shall not be limited by 
the provisions of this title." 120 Cong. Rec. 38646 
(1974) . With the purpose of congressional action so clear, 
our conclusion follows the "cardinal principle" of legisla- 
tive interpretation: to give effect to the intent of Con- 
gress. City of New York v. Train, 494 F.2d 1033, 1042 
(D.C. Cir. 1974), afd, 420 U.S. 35 (1975). 

The appellees suggest, however, that the interpretation 
of section 104(d) we adopt may cause constitutional diffi- 
culties. The appellees argue that release of presidential 



13 H. Rep. No. 93-1507, 93d Cong., 2d Sess. (1974). 
14 120 Cong. Rec. 33975 (1974) . 
15 H. Rep. No. 93-1507 at 5. 



267 



11 



materials without the specific statutory safeguards em- 
bodied in section 104(a) 1 * 5 might impair Mr. Nixon's con- 
stitutional rights. This contention is based on appellees' 
reading of Nixon v. Administrator, 433 U.S. 425 (1977). 
The Supreme Court, upholding the Materials Act in face 
of Mr. Nixon's claim that the archival screening process 
would impair his constitutional right to privacy, focused 
attention on the specific provisions of the Act that protect 
Mr. Nixon's privacy. The Court concluded : 

[A]ppellant has a legitimate expectation of privacy 
in his personal communications. But the constitu- 
tionality of the Act must be viewed in the context of 
the limited intrusion of the screening process, of 
appellant's status as a public figure, of his lack of 
any expectation of privacy in the overwhelming ma- 
jority of the materials, of the important public inter- 
est in preservation of the materials, and of the vir- 
tual impossibility of segregating the small quantity 
of private materials without comprehensive screening. 
When this is combined with the Act's sensitivity to 
appellant's legitimate privacy interests, see § 104(a) 
(7), the unblemished record of the archivists for dis- 
cretion, and the likelihood that the regulations to be 
promulgated by the Administrator will further moot 
appellant's fears that his materials will be reviewed 
by "a host of persons," Brief for Appellant 150, we 
are compelled to agree with the District Court that 
appellant's privacy claim is without merit. 

433 U.S. at 465 (footnote omitted) . Even if, as Mr. Nixon 
asserts, the Materials Act's protection of his interests was 
the "touchstone" for the decision in Nixon v. Administra- 
tor, see Brief for Appellee Nixon at 7, Mr. Nixon's as- 
serted constitutionally based privacy interests in some of 
the materials now under government control 17 will not be 






16 See n. 10 supra. 

17 The Supreme Court noted that "appellant's privacy claim 
embracing, for example, 'extremely private communications 



268 



12 



infringed by our decision today, which merely allows 
FOIA requests to proceed unhindered by the Materials 
Act. After this case returns to district court, Mr. Nixon 
will be free to raise constitutional objections to screening 
or disclosure carried on pursuant to any specific FOIA 
request. In the event a district court finds that any re- 
quest for particular papers will lead to impingement upon 
Mr. Nixon's constitutional rights, it has the equitable 
power to protect Mr. Nixon's constitutional interests. 
See Bell v. Hood, 327 U.S. 678, 684 (1946) ; Ex parte 
Young, 209 U.S. 123, 149, 167-68 (1908) ; Dellinger, Of 
Rights and Remedies: The Constitution as a Sword, 85 
Harv. L. Rev. 1532, 1540-43 (1972). See also 5 U.S.C. 
§ 552(b) (6) (1976). 18 

Mr. Nixon also contends that screening of documents 
mandated by an FOIA request will disrupt the screening 
undertaken to carry out the Materials Act. Like the con- 
stitutional argument previously discussed, this objection 
does not address whether the FOIA requests can go for- 
ward, but merely raises concerns with the procedures by 
which processing of the requests may be carried out. We 
believe that fears of massive disruption by requests for 
huge, vaguely defined chunks of presidential material are 
largely unfounded. The FOIA specifically requires that 
requests such as the ones made here "reasonably de- 
scribe []" the records sought. 5 U.S.C. § 552(a) (3) (A) 



between him and, among others, his wife, his daughter, his 
physician, lawyer, and clergyman, and his close friends, as 
well as personal diary dictabelts and his wife's personal files/ 
408 F. Supp. at 359, relates only to a very small fraction of 
the massive volume of official materials with which they are 
presently commingled. " Nixon v. Administrator, 433 U.S. at 
459 (footnote omitted). 

18 See generally Nixon v. Sampson, 389 F. Supp. at 157-60. 
Although the Nixon v. Sampson opinion is not precedent, it is 
of historical interest. Brandon v. Eckard, 569 F.2d 683, 686- 
87 n.15 (D.C. Cir. 1977). 



269 



13 



(1976). See Fonda v. CIA, 434 F. Supp. 498, 501 (D.D.C. 
1977), remanded sub nom. Hayden v. CIA, No. 77-1984 

(D.C. Cir. Nov. 15, 1978) (per curiam). See also 
K. Davis, Administrative Law of the Seventies, 
§ 3A.9-1 (1976) ; Note, Developments Under the Freedom 
of Information Act 1974, 1975 Duke L. J. 416, 439-40 
n.105 (1975) ; Note, The Freedom of Information Act 
Amendments of 1974: An Analysis, 26 Syracuse L. Rev. 
951, 959-60 (1975). In any event, the possible duplica- 
tion of effort arising from availability of records under 
both the FOIA and the Materials Act cannot negate the 
clear intent of Congress to preserve rights of access under 
the FOIA. 

Ill 

In conjunction with their FOIA action, appellants 
sought a declaration that Mr. Nixon's presidential mate- 
rials are owned by the United States. The district court 
dismissed the declaratory judgment action as moot on the 
ground that the provisions of the Materials Act gave cus- 
tody and control of these presidential materials to the 
government. 19 The Materials Act itself leaves open the 



19 Section 101 of the Materials Act, note following 44 U.S.C. 
§ 2107 (Supp. V 1975), provides: 

(a) Notwithstanding any other law or any agreement 
or understanding made pursuant to section 2107 of title 
44, United States Code any Federal employee in posses- 
sion shall deliver, and the Administrator of General 
Services (hereinafter in this title referred to as the 'Ad- 
ministrator') shall receive, obtain, or retain, complete 
possession and control of all original tape recordings of 
conversations which were recorded or caused to be re- 
corded by any officer or employee of the Federal Govern- 
ment and which — 

(1) involve former President Richard M. Nixon 
or other individuals who, at the time of the conver- 
sation, were employed by the Federal Government; 

(2) were recorded in the White House or in the 
office of the President in the Executive Office Build- 



270 
14 



specific issue whether the United States owns the mate- 
rials. See H. Rep. No. 93-1507, 93d Cong., 2d Sess. 7 
(1974); 120 Cong. Rec. 33850-51 (1974) (remarks of 
Sen. Nelson). Section 105(a) vests exclusive jurisdiction 
in the United States District Court for the District of 
Columbia to hear, inter alia, any action involving the 
question of ownership. 

As the district court recognized, an issue is moot if it 
has lost its character as a present, live controversy. See 
Nixon v. Sampson, 437 F. Supp. at 655 (citing Diffender- 
fer v. Central Baptist Church, 404 U.S. 412, 415 (1972) ) ; 
see generally Alton & Southern Railway v. IAM, 463 
F.2d 872, 876-77 (D.C. Cir. 1972). With respect to access 
under the FOIA, the ownership issue is not moot, because 
neither the Materials Act nor Nixon v. Administrator, 20 



ings located in Washington, District of Columbia; 
Camp David, Maryland; Key Biscayne, Florida; or 
San Clemente, California; and 

(3) were recorded during the period beginning 
January 20, 1969, and ending August 9, 1974. 

(b) (1) Notwithstanding any other law or any agree- 
ment or understanding made pursuant to section 2107 
of title 44, United States Code, the Administrator shall 
receive, retain, or make reasonable efforts to obtain, com- 
plete possession and control of all papers, documents, 
memorandums, transcripts, and other objects and mate- 
rials which constitute the Presidential historical materi- 
als of Richard M. Nixon, covering the period beginning 
January 20, 1969, and ending August 9, 1974. 

(2) For purposes of this subsection, the term "his- 
torical materials" has the meaning given it by section 
2101 of title 44, United States Code. 

20 The Supreme Court held that legal title to the presiden- 
tial materials was irrelevant to disposition of Mr. Nixon's 
constitutional claims. Nixon v. Administrator, 433 U.S. at 
445-46 n.8. 



271 



15 



resolved the issue or changed its character. Accordingly, 
we hold that the ownership issue is not moot. 21 

Reversed and remanded. 



21 Although we hold that the ownership issue is not moot, the 
district court is free to examine whether this request for 
declaratory action fulfills other justiciability requirements. 
Specifically, the district court may wish to examine whether 
these plaintiffs have established their standing to litigate in a 
declaratory judgment action the question of whether the gov- 
ernment or Mr. Nixon is the owner of all these materials, see 
Duke Power Co. v. NRC, 46 U.S.L.W. 4845, 4848-49 (1978) ; 
Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41- 
42 (1976), and whether the issue presented here is suitable 
for resolution by declaratory judgment, see Golden v. Zwick- 
ler, 394 U.S. 103, 108 (1969). Of course, to the extent that 
the ownership of particular materials becomes an issue in the 
course of litigating an FOIA request for those materials in 
this or any other case, the FOIA plaintiffs will have standing 
to litigate that ownership question as well as all other issues 
relevant to their claim. 



United States District Court for the District of 
Columbia 



Civil Action No. 76-2039 

Robert Bennett Schwartz, plaintiff, 

v. 

Department of Justice et al., defendants. 



Memorandum 



This is an action in which plaintiff seeks certain rec- 
ords from the Department of Justice and Peter A. 
Rodino, Jr., Chairman of the Committee on the Judici- 
ary of the United States House of Representatives, on 
the investigation of one Peter R. Schlam. The Depart- 
ment of Justice is sued under the Freedom of Informa- 
tion Act. Mr. Rodino is sued under the common law 
right of access to public records. The matter is now 
before the Court on Mr. Rodino's motion to dismiss. Mr. 
Rodino claims that Congress is not subject to the 
common law rule which gives citizens a right of access 
to public records. 

The historic common law right to inspect and copy 
public records is recognized in this jurisdiction. United 
States v. Mitchell, 551 F.2d 1252, 1257 (D.C. Cir. 1976). 
The general rule is that all three branches of govern- 
ment, legislative, executive, and judicial, are subject to 
the common law right. Courier- Journal & Louisville 
Times Co. v. Curtis, 335 S.W.2d 934, 936 (Ky. 1959), cert 
denied, 364 U.S. 910 (1960), partially overruled on other 
grounds, St. Matthews v. Voice of St. Matthews Inc., 519 

(273) 



274 

S.W.2d 811 (Ky. 1974): 66 Am. Jur. 2d Records and 
Recording Laws § 15 (1973). 

Defendant Rodino has set forth no persuasive reason 
why Congress should be exempted from the common 
law rule. It is true that Congress has exempted itself 
from the requirements of the Freedom of Information 
Act, 5 U.S.C. § 552, by 5 U.S.C. § 551(1)(A). That Act, 
however, is not coextensive with the common law rule 
under discussion. It applies to all matters in Govern- 
ment files; the common law rule applies only to "public 
records/' Moreover, we can find no inconsistency or 
conflict between the Freedom of Information Act and 
the common law rule. Even if there were an inconsis- 
tency or conflict, the Act would have to be construed 
narrowly, favoring application of the common law, be- 
cause the Freedom of Information Act is in derogation 
of the common law. 

Accordingly, we hold that Congress is subject to the 
common law rule which guarantees the public a right to 
inspect and copy public records. Absent a showing that 
the matters sought by plaintiff are not "public records" 
within the meaning of the common law rule or that 
plaintiff does not possess any "interest" required by the 
rule, we cannot grant defendant Rodino's motion for 
dismissal. 

If Congress wishes to exempt itself from the common 
law rule or to impose standards for its application, it 
has the means to do so readily at its disposal. It has, 
however, not done so and therefore remains subject to 
the common law rule. 

An order will issue accordingly. 

Dated: August 24, 1977. 

John H. Pratt, 
United States District Judge. 






275 

United States District Court for the District of 
Columbia 



Civil Action No. 76-2039 

Robert B. Schwartz, plaintiff, 

v. 

Department of Justice et al., defendants. 



Memorandum Order 

Three matters regarding this Freedom of Information 
Act suit are currently before this Court. The motion of 
defendant Peter Rodino to dismiss the action as to him, 
or in the alternative for summary judgment, must be 
evaluated. In addition, plaintiffs motion to compel dis- 
covery and defendant Department of Justice's motion 
for a protective order merit this Court's attention. 

A. Motion of defendant Peter Rodino, On September 
30, 1977, defendant Rodino filed a motion to dismiss or, 
in the alternative, for summary judgment. That motion 
was opposed on October 11 and thereafter supported by 
a second affidavit and various documents on December 
7, 1977. 

It is the opinion of this Court that defendant Rodino's 
motion for summary judgment must be granted. Mr. 
Rodino has, by sworn affidavit, indicated that he has 
directed a thorough records search and that "no stone 
was left unturned in this matter/ ' He has filed and 
delivered copies of all materials compiled by this Com- 
mittee. When the defendant, in candor and good faith, 
indicates that all available records have been turned 
over to the plaintiff, a reviewing court must grant sum- 
mary judgment in defendant's behalf. See Nolen v. 
Rumsfeld, 535 F.2d 890, 891 (5th Cir. 1976), cert, denied, 



276 

429 U.S. 1104 (1977); Weisberg v. U.S. Department of 
Justice, Civil Action No. 75-226 (D.D.C. Oct. 5, 1977). 

B. & C. Motion of Plaintiff to Compel Discovery and 
Motion of Defendant Department of Justice for Protec- 
tive Order. On August 1, 1977, plaintiff filed interroga- 
tories in connection with this action. After being served 
with a motion to compel discovery on September 19, 
defendant Department of Justice indicated that it had 
not received the interrogatories via plaintiffs alleged 
service of process but that it would "initiate the prepa- 
ration of appropriate responses." Plaintiff was not satis- 
fied with this representation, and by reply of October 5 
and letter to this Court on October 30 renewed his 
motion to compel. 

On November 22 defendant Department of Justice 
filed a motion for protective order asserting that a dis- 
positive motion was to be "imminently filed' ' and that 
discovery would be superfluous in the Freedom of Infor- 
mation Act context. Plaintiff opposed this motion on 
December 2. On December 9 this Court was advised that 
the Department of Justice would prepare a dispositive 
motion and a catalogue of relevant documents by Janu- 
ary 23, 1978. 

We cannot endorse defendant's request for a protec- 
tive order. Plaintiff, proceeding pro se, filed this action 
in November 1976 and has been delayed over one year 
in his efforts to secure the information at issue. The 
interrogatories do not strike this Court as unduly bur- 
densome, and they may assist plaintiff in his attempts 
to locate additional relevant documents. 

For these reasons, it is by this Court this 12th day of 
December, 1977, 

ORDERED, that the motion of defendant Peter 
Rodino for summary judgment be, and the same hereby 
is, granted; and it is further 

ORDERED, that the motion of defendant Department 
of Justice for a protective order be, and the same 
hereby is, denied; and it is further 

ORDERED, that defendant Department of Justice 
shall answer plaintiffs first set of interrogatories on or 






277 



before January 6, 1978. No further extensions will be 
granted. 

J. H. Pratt, 
United States District Judge. 



United States District Court for the District of 
Columbia 



Civil Action No. 76-2039 

Robert B. Schwartz, plaintiff, 

v. 

Department of Justice et al., defendants. 



Memorandum Order 

Defendant Department of Justice has moved for sum- 
mary judgment in this Freedom of Information Act 
(FOIA) action, producing numerous documents and 
withholding others pursuant to FOIA exemptions 5, 6, 
7(C) and 7(D). 5 U.S.C. § 552(b). In support of its motion, 
defendant has submitted Vaughn v. Rosen affidavits 
analyzing in detail the documents themselves, and 
where pertinent, citing the provisions of the statute 
relied upon. We previously, by Order of December 13, 
1977, granted summary judgment for the remaining de- 
fendant Peter Rodino, who was sued in his official ca- 
pacity as Chairman of the House Judiciary Committee: 
defendant Rodino by sworn affidavit informed this 
Court that no records existed in his files responsive to 
plaintiffs request and that relevant background materi- 



278 

al voluntarily was being supplied to plaintiff by defend- 
ant Rodino. 1 

At issue in this action are documents pertaining to an 
investigation regarding the conduct of Peter Schlam, an 
Assistant United States Attorney for the Eastern Dis- 
trict of New York, in the unsuccessful extortion and 
conspiracy prosecution of United States Representative 
Angelo Roncallo. Schlam fell ill during the final days of 
that trial as a result of the ingestion of a quantity of 
drugs, possibly self induced, and his illness attracted 
substantial public attention. Plaintiff seeks documents 
relating to the investigation of that drugging incident 
by the Department of Justice. Because we find that the 
documents are protected from disclosure by exemptions 
6, 7(C) and 7(D), we do not find it necessary to analyze 
the applicability of exemption 5 as advanced by defend- 
ant. 2 

A. Exemption 7(C). The FOIA exempts from manda- 
tory disclosure "investigatory records compiled for law 
enforcement purposes, but only to the extent that the 
production of such records would * * * (C) constitute an 
unwarranted invasion of personal privacy/ ' Our review 
of the itemizations of documents convinces us that the 
withheld documents were compiled for law enforcement 
purposes. It is not necessary that further enforcement 
proceedings be imminent in order to qualify under ex- 
emption 7. Rural Housing Alliance v. U.S. Department 
of Agriculture, 498 F.2d 73 (D.C. Cir. 1974) (compilation 
of records for adjudicatory purposes sufficient to 
achieve protection of exemption 7); see Koch v. Depart- 
ment of Justice, 376 F. Supp. 313, 315 (D.D.C. 1974) 
(records compiled for enforcement of regulatory provi- 
sions protected); Green v. Kleindienst, 378 F. Supp. 1397, 
1400 (D.D.C. 1974) (business review letters protected). 
We find that these records were compiled for law en- 



1 The Attorney General of the United States also was joined as 
defendant, in his official capacity, and his liability will be treated 
as incorporated into that of the Department of Justice. 

2 We have reviewed the itemizations of the withheld documents 
carefully, but do not in this memorandum discuss the individual 
documents. Notably, exemptions 6 and 7(C) are asserted for each 
and every document withheld. 



279 

forcement purposes relating to alleged improprieties in 
the prosecution of Congressman Roncallo, particularly 
noting that a letter of reprimand was placed in 
Schlam's file as a result of the investigation. See De- 
fendant's Motion for Summary Judgment, Exhibit I 
(letter of V. Rakestraw, at 4). 

It is also our opinion that release of intimate details 
regarding the drugging incident would constitute "an 
unwarranted invasion of personal privacy." Since we 
also hold that the release would constitute a clearly 
unwarranted invasion meriting exemption from disclo- 
sure pursuant to exemption 6 (see discussion, infra), we 
are satisfied that the less demanding burden on the 
Government in meeting the privacy invasion aspects of 
exemption 7 has been satisfied. See Department of the 
Air Force v. Rose, 425, U.S. 352, 378-79 n.16 (1976). 

We therefore conclude that these documents are pro- 
tected from disclosure by exemption 7(C), 

B. Exemption 7(D). Exemption 7(D) protects "investi- 
gatory records compiled for law enforcement purposes, 
but only to the extent that the production of such rec- 
ords would * * * (D) disclose the identity of a confiden- 
tial source * * *." Defendant asserts that disclosure of 
the requested information would jeopardize the confi- 
dential relationships which enabled the Government to 
secure the information at issue, since a person familiar 
with this incident would be able to ascertain the identi- 
ty of the source by an analysis of information involved. 
See Defendant's Motion for Summary Judgment, Exhib- 
it III (Affidavit of G. R. Schweickhardt at 7-10). We 
accept this sworn testimony, and determine that these 
records are protected by exemption 7(D). See Harbolt v. 
Alldredge, 464 F.2d 1243, 1244 (10th Cir.), cert denied. 
409 U.S. 1025 (1972) (FBI interrogation reports not sub- 
ject to disclosure). 

C. Exemption 6. Exemption 6 protects from disclosure 
"personnel and medical files the disclosure of which 
would constitute a clearly unwarranted invasion of per- 
sonal privacy." To determine the applicability of this 
exemption, it is necessary to balance the privacy inter- 
est of Peter Schlam against the public interest purpose 



280 

which would be satisfied by the production of the docu- 
ments at issue, 3 recognizing that we should tilt the bal- 
ance in favor of disclosure. Getman v. N.L.R.B., 450 F.2d 
670, 674-75 (D.C. Cir. 1971). In reaching our conclusion, 
we endorse the reasoning employed by the court in Hiss 
v. Department of Justice, C.A. No. 76Civ4672 (S.D. N.Y. 
Oct. 18, 1977) in upholding the applicability of exemp- 
tion 6 to protect from disclosure records relating to the 
conduct of a private investigator engaged in the defense 
of Alger Hiss before the House Un-American Activities 
Committee. The Court there determined that disclosure 
of information relating to the investigator's relationship 
with government intelligence agencies would be embar- 
rassing and clearly unwarranted. Plaintiff in this action 
protests the nondisclosure of unverified opinions and 
reports regarding Schlam's personal, social, professional 
and medical status, and it is this Court's conclusion that 
disclosure would constitute a serious privacy invasion. 
See Columbia Packing Co., Inc^ v. Department of Agri- 
culture, 417 F. Supp. 651, 654 (D. Mass. 1976). 

In balancing the interests at issue in this litigation, 
we have evaluated plaintiff Schwartz's assertions that 
the public interest would be advanced by release of this 
information. Plaintiff asserts that such release would 
enable him "to judge the quality and fairness of [the 
Roncallo] judicial proceedings and the conduct of AUSA 
Peter R. Schlam." Memorandum of Points and Authori- 
ties in Opposition to Defendant's Motion for Summary 
Judgment at 2. While we find that this proffered inter- 
est may be a legitimate one, we do not find that it is 
sufficient to tip the balance in favor of disclosure. Fur- 
thermore, in the context of this case, we are prone to 
believe that plaintiffs real motivation may lie else- 
where. 



3 We must evaluate the public interest with reference to the 
advantages to be secured by release to this plaintiff. See Rural 
Housing Alliance v. Department of Agriculture, supra, at 77; 
Getman v. N.L.R.B., 450 F.2d 670, 677 n.24 (D.C. Cir. 1974). But see 
Dictlow v. Schultz, 517 F.2d 166, 171 (D.C. Cir. 1975) (dictum) (eval- 
uation should be with reference to the advantages to be secured by 
release to the general public). Our decision in this action would not 
be altered by application of the standard suggested in Ditlow. 



281 

In Hiss v. Department of Justice, supra, slip op. at 7, 
the Court in rejecting plaintiffs assertions that release 
of the information would be in furtherance of the public 
interest in the conduct of government prosecutions, 
characterized them as being invoked "only to satisfy the 
requirements of the FOIA," whereas the plaintiffs per- 
sonal interests were paramount. We find plaintiff 
Schwartz's attempt to distinquish the Hiss case to be 
unpersuasive, and like the Hiss court determine that 
plaintiff here has not met his burden of demonstrating 
that the public interest in the disclosure outweighs the 
clear invasion of privacy which disclosure of these docu- 
ments would constitute. 

For these reasons, it is by the Court this 9th day of 
February, 1978, 

ORDERED, that defendant's motion for summary 
judgment be granted; and it is further 

ORDERED, that this action is dismissed. 

John H. Pratt, 
United States District Judge. 



United States District Court for the District of 
Columbia 



Civil Action No. 78-0196 
O'Dell Lewis et al., plaintiffs 

v. 

Shirley Chisholm et al., defendants. 



Order 



Upon consideration of Defendants' Motion to Dismiss 
for failure to state a claim upon which relief can be 
granted, Plaintiffs' opposition thereto and the entire 
record herein, it appearing to the Court that Plaintiff 
O'Dell Lewis' employment in the legislative branch of 
the United States Government was not in the competi- 
tive service, and it further appearing that 42 U.S.C. 
§ 2000e-16 (1976) which provides the exclusive remedy 
for discrimination in employment by the federal govern- 
ment affords Plaintiff O'Dell Lewis no remedy and has 
not been raised in Plaintiffs' complaint, it is by the 
Court this 29th day of November, 1978, 

ORDERED, that Defendants' Motion to Dismiss for 
failure to state a claim upon which relief can be 
granted be and hereby is GRANTED. 

Aubrey E. Robinson, Jr., 
United States District Judge. 

(283) 



United States District Court for the District of 
Columbia 



Civil Action No. 78-1259 
Martin Tractor Company et al., plaintiffs, 

v. 

Federal Election Commission et al., defendants. 



• I. Memorandum 

Three corporations, their political action committees, 
executives of two of them and a non-salaried employee 
of one of them here sue the Federal Election Commis- 
sion and its members for a declaratory judgment that 
one section of the Federal Election Campaign Act of 
1971, as amended in 1976, 2 U.S.C. § 431 et seq., (the 
Act) violates rights guaranteed to them by the First and 
Fifth Amendments of the Constitution. The alleged vio- 
lations result from a threat, apparent on the face of 
§ 441b of the Act, that if corporate and executive plain- 
tiffs sought voluntary contributions to a political fund 
from hourly employees orally and in writing, on or off 
the corporation's premises, more than twice a year, they 
could be punished by fine and imprisonment. This 
threat has allegedly caused these plaintiffs to limit 
their exercise of their constitutional right to seek such 
voluntary contributions by communicating with hourly 
employees and concurrently impinged upon the right of 
the hourly employee plaintiff to receive such communi- 
cation. Plaintiffs also seek injunctive relief to prevent 

(285) 



286 

enforcement of § 441 and the regulations pursuant 
thereto. 

Defendants have moved to dismiss this complaint for 
lack of jurisdiction over the subject matter or for failure 
to state a claim upon which relief can be granted. Rec- 
ognizing that the spirit of the Act requires prompt 
Court attention to constitutional questions raised about 
it, 1 and also recognizing the possible need of the parties 
for prompt action by this Court in order to expedite 
appeal from whatever decision it might make, the de- 
fendants' motion to dismiss was granted on October 18, 
1978, with an indication that an explanatory memoran- 
dum would be forthcoming promptly. 

The decision to dismiss the complaint was based upon 
the Court's conclusions, first, that plaintiffs may not 
invoke the statutory provision for judicial review pro- 
vided in 2 U.S.C. § 437(h) and, secondly, that even if 
they qualified under that section, they presented as yet 
no case or controversy sufficiently ripe to invoke the 
declaratory powers of a federal court. A brief outline of 
the statutory scheme for enforcement written into the 
Act by Congress is necessary background to those 
conclusions. 

In general the statute contemplates that defendants 
should investigate any complaint about violation of the 
Act in confidence and allow any person there charged a 
reasonable opportunity to respond; 2 U.S.C. § 436(g). The 
Court accepts as binding upon the FEC its statement 
that a party may raise any defenses or arguments 
during such proceedings, including constitutional ones; 
Brief at 8. If the defendants later determine that there 
is reasonable cause to believe that a violation either has 
occurred or is threatened, they must attempt informal 
resolution of that alleged or threatened violation for at 
least thirty days. If the informal resolution fails, defend- 
ants may file a civil enforcement action in a federal 
district court; if they find that a knowing and willful 
violation has occurred, the defendants may refer the 
matter to the Attorney General who may or may not 
initiate criminal prosecution. 



See 2 U.S.C. § 437(h)a, discussed further below. 



287 
II. 

Plaintiffs claim that they are entitled to invoke the 
Court's jurisdiction under a unique provision of the Act 
which authorizes particular persons to sue "for declara- 
tory judgment as may be appropriate to construe the 
constitutionality of any provision of this act/' 2 U.S.C. 
§ 437(h)a. Section 437(h)a had the purpose and effect of 
expediting judicial review of questions raised in Con- 
gress about the constitutionality of particular provisions 
of the Act so that these questions could be authorita- 
tively resolved before the Presidential Election of 1976. 
See Remarks of Senator James Buckley, 119 Cong. Rec. 
S5707 (daily ed. April 10, 1974); Buckley v. Valeo, 424 
U.S. 1, 11-12 (1976). Plaintiffs do not suggest that 
§ 441(h) here at issue was among the provisions whose 
constitutionality was questioned in Congress. In any 
event, and crucial here, access to court pursuant to 
§ 437(h)a was by its terms limited to "the Commission, 
the national committee of any political party, or any 
individual eligible to vote in any election for the office 
of President of the United States." 

Neither the corporate plaintiffs, nor the political 
action committees are in the category of entities or 
individuals entitled to invoke the Court's jurisdiction 
under § 437(h)a. The decision to dismiss their complaint 
seems therefore to be a fortiori. 

A closer question is raised with respect to the execu- 
tive plaintiffs and the hourly employee plaintiff. The 
complaint alleges that they are eligible voters; the com- 
plaint puts at issue, however, not their rights as voters, 
but rather the constitutionality of the Act's provisions 
relating to communications between a corporation and 
its employees about voluntary contributions. Thus, as 
defendants persuasively contend, the individual plain- 
tiffs do not sue in their individual capacities to protect 
their individual rights to vote or even to make contribu- 
tions. They sue to vindicate a claimed right of their 
corporate employer to influence its employees (includ- 
ing one of the plaintiffs) to make voluntary political 
contributions. While the question is not free from doubt, 
the Court has concluded that this kind of derivative 



288 

right was not the constitutional right of "an individual 
eligible to vote" which Congress considered "appropri- 
ate" for vindication in a special declaratory judgment 
action under § 437(h), particularly where, under the 
statutory scheme there is an alternative process for 
resolution of the substantive issue in the context of a 
particular transaction, infra. 

III. Justiciability 

The result would be no different if the Court as- 
sumed, contrary to the foregoing conclusion, that plain- 
tiffs could qualify under § 437(h). That section, while it 
may confer standing on certain classes, cannot by itself 
create a justiciable controversy. All actions brought 
under the statutory provisions for judicial review are 
subject to the requirements of "case and controversy" 
and "ripeness." See United Public Workers v. Mitchell, 
330 U.S. 75 (1947); Muskrat v. United States, 219 U.S. 
346 (1911). Whether required by Article III of the Con- 
stitution or in part an expression of the discretion in- 
herent in equity and declaratory judgment jurisdiction, 
these restrictions upon the jurisdiction of the federal 
courts are well established. Under the facts of this case, 
the Court concludes that there is at present no case or 
controversy sufficiently ripe for declaratory action. 
Plaintiffs merely allege that they communicated more 
freely with employees about contributions before the 
Act became law and desire to resume the practice and 
would do so but for the Act. They have not, however, 
advised defendants of their desire to communicate with 
their employees differently from the times and manner 
prescribed by law, nor sought any ruling by defendants 
to accommodate that desire. Neither have defendants 
taken any steps to invoke the statutory enforcement 
procedures. Where then is the case or controversy? 

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) 
establishes a test for determining whether action taken 
by an agency has created a sufficiently "ripe" contro- 
versy to permit granting of declaratory or injunctive 
relief. The challenge there was to a final action of the 
Federal Trade Commission in approving regulations 



289 

which required drug manufacturers to print the "estab- 
lished name" of a drug in a specified typeface on any 
label or printed material, whenever it printed the "pro- 
prietary name" of that drug. 

Noting that the rationale of the ripeness doctrine is 
"to prevent the courts, through avoidance of premature 
adjudication, from entangling themselves in abstract 
disagreements over administrative policies, and also to 
protect the agencies from judicial interference until an 
administrative decision has been formalized and its ef- 
fects felt in a concrete way by the challenging parties," 
the Court set forth a twofold test involving the balanc- 
ing of "the fitness of the issues for judicial decision" 
and the "hardship to the parties of withholding court 
consideration." Id. at 149. 

As to the first factor, the Court noted that the issue 
for review was a "purely legal one: whether the statute 
was properly construed by the Commissioner to require 
the established name of the drug to be used every time 
the proprietary name is employed." Id. In contrast in 
this case factual issues which have not yet been devel- 
oped are central to evaluating the constitutionality of 
the challenged provisions. For example, whatever the 
First Amendment rights of corporations, see First Na- 
tional Bank v. Belotti, 46 U.S.L.W. 4371 (April 26, 1978), 
they are not without limits and have been long subject 
to regulation in the context of protecting employees 
from pressure from employers. See NLRB v. Gissell 
Packing Co., 395 U.S. 575 (1969). The balancing of the 
interests of a corporation and its employees (as well as 
the rights of others in society which are sought to be 
protected by the provisions of the Act challenged here) 
requires a factual record. Such a record may be based 
upon actual conduct of the corporation since the provi- 
sion was enacted, which conduct the Commission chal- 
lenges, or upon a threat of such conduct sufficiently 
definite so that the Commission can determine whether 
it would violate the Act. Only such a record would 
permit a court confidently to evaluate, among other 
relevant factors, the extent to which the conduct resem- 
bles speech activity or nonspeech activity, the extent of 



290 

the pressures the conduct exerts upon employees or 
others, and whether the corporation could accomplish 
its ligitimate objectives by alternative means consistent 
with the statute. 2 

In considering the fitness for judicial review, the 
Abbott Court also noted that there was no claim that 
further agency action would be contemplated. The 
Court found the regulations at issue to be "final agency 
action" within the meaning of 5 U.S.C. § 704. The ruling 
was "quite clearly definitive" with "no hint that this 
regulation is informal * * * or only the ruling of a 
subordinate official. * * *" Id. at 151. Here by contrast 
plaintiffs as of yet challenge no agency determination 
that their conduct violates or would violate the Act. The 
Court is required not only to speculate about the exact 
nature of plaintiffs' conduct, but also about whether in 
fact the FEC would find that conduct to violate the Act. 

Turning to the second factor, the hardship of with- 
holding court consideration until a later time, the 
Abbott Court noted that compliance would require peti- 
tioners to "change all their labels, advertisements, and 
promotional materials * * * and invest heavily in new 
printing type and new supplies. The alternative to com- 
pliance * * * may be even more costly. That course 
would risk serious criminal and civil penalties * * * To 
require [plaintiffs] to challenge these regulations only 
as a defense to an action brought by the Government 
might harm them severely and unnecessarily." Id. at 
152, 153. 

By contrast, plaintiffs here face no Hobson's choice 
between costly compliance or the risk of serious crimi- 
nal or civil penalties. Plaintiffs need not even engage in 
the conduct whose legality concerns them. There is no 
showing that they could not apply for and attempt to 
negotiate a ruling which would permit them safely to 



2 See Scarpf, "Judicial Review and the Political Question: A 
Functional Analysis," 75 Yale L. J. 517, 531 (1966): "[T]he Court [in 
United Public Workers v. Mitchell, supra] may well have regarded 
the constitutional balance between the political rights of civil ser- 
vants and the legitimate public interest in a neutral civil service as 
an extremely close one, depending very much upon the actual 
scope of enforcement and upon the concrete nature of the activities 
against which sanctions were to be applied." 



291 

accomplish their objectives consistently with the Act. 
Moreover, the enforcement procedures of the Act may 
be triggered either by actual conduct or a genuine 
threat thereof. Even if they engage in such conduct, 
however, the enforcement procedure which is yet to be 
invoked contemplates mandatory conciliation before 
legal action may be taken. After conciliation has failed, 
both the conduct to be reviewed and the FEC's position 
with respect to that conduct would be far more concrete 
and susceptible to judicial scrutiny through a declara- 
tory action. 

To summarize the application of the Abbott test, then, 
the Court concludes, first, that the issue framed by 
plaintiffs is not readily amenable to judicial review, 
being uncertain as to both conduct and legal conse- 
quences and, secondly, that the harm in delaying review 
is minimal since plaintiffs have yet to take the relative- 
ly costless steps which would permit an initial determi- 
nation of the legality of their intended conduct. 

In the course of reaching these conclusions, the Court 
has also considered whether, in a case involving First 
Amendment rights which requires a sensitivity to 
"chilling effects," such effects may create a ripe contro- 
versy at an earlier stage than in a case not involving 
First Amendment rights; cf. Gardner v. Toilet Goods 
Association, 387 U.S. 167, 187 (1967) ("Where personal 
status or liberties are involved the courts may well 
insist upon a considerable ease of challenging adminis- 
trative order or regulations"). Although plaintiffs allege 
they did engage in solicitation which they have ceased 
since enactment of the Act, in light of the enforcement- 
cum-conciliation provisions of the statute and the mini- 
mal cost of triggering those provisions, any chilling 
effect is at present highly subjective and, as the Court 
concluded in Laird v. Tatum, 408 U.S. 1, 13-15 (1972), 
"not an adequate substitute for a claim of specific pres- 
ent objective harm or a threat of specific future harm." 3 

3 There is no allegation here that plaintiff has sought through 
the enforcement procedures or otherwise to clear its intended con- 
duct with the Commission and that the Commission has refused 
either to invoke those procedures or give informal approval. Use of 
the potential threat of those procedures as a "Sword of Damocles" 
might present a different case. 



292 

The conclusion that there is no controversy sufficient- 
ly ripe to invoke declaratory relief is further supported 
by United Public Workers v. Mitchell, supra, which 
itself involved First Amendment rights. There plaintiffs 
challenged provisions of the Hatch Act which forbade 
their participating in political campaign activities. The 
Court found it inadequate merely to "declare a desire to 
act contrary to the rule against political activity but not 
that the rule has been violated." Id. at 88. "No threat of 
interference by the [Civil Service] Commission with 
rights of these appellants appears beyond that implied 
by the existence of the law and the regulations." Id. at 
91. Justice Douglas' dissent in that case noted that the 
appellants' alternative of violating the rule would result 
in the loss of jobs, seniority and benefits; as noted 
above, by contrast, plaintiffs will suffer little harm, if 
any, should they be required to "ripen" their claims 
before seeking judicial review. 

It is for these reasons that the Court granted defend- 
ants' motion to dismiss. 

Louis F. Oberdorfer, Jr., 
United States District Judge. 

Dated: November 7, 1978. 



United States District Court for the District of 
Columbia 



Civil Action No. 2271-71 
Ronald V. Dellums et al., plaintiffs, 

v. 

James M. Powell et al., defendants. 



Memorandum Opinion 

This matter is before the Court on remand from the 
Court of Appeals for modification of this Court's memo- 
randum and order of March 10, 1976, denying former 
President Nixon's motion to quash a subpoena duces 
tecum seeking discovery of recorded White House con- 
versations. 

Plaintiffs, Congressman Ronald Dellums and others, 
represent a class of approximately 1,200 persons who 
were arrested and detained by the Metropolitan Police 
of Washington, D.C. and the United States Capitol 
Police on May 5, 1971, for demonstrating on the steps of 
the Capitol against the war in Vietnam. Plaintiffs filed 
this suit on November 11, 1971, against the chiefs of the 
Metropolitan and Capitol Police Forces and other Dis- 
trict of Columbia and federal defendants, including the 
then Attorney General, John Mitchell. The complaint 
alleged a civil conspiracy on the part of defendants to 
violate plaintiffs' First Amendment rights of free ex- 
pression and assembly as well as civil rights guaranteed 
in the Fourth, Fifth, Sixth, and Eighth Amendments of 

(293) 



294 

the Constitution. On December 2, 1974, this Court sev- 
ered defendant John Mitchell because of his involve- 
ment in other judicial proceedings, and on December 11, 
1974, this case went to trial. On January 16, 1975, a 
substantial jury verdict of more than twelve million 
dollars was rendered in favor of plaintiffs against the 
District of Columbia and federal defendants for false 
arrest, false imprisonment, malicious prosecution, and 
violation of First Amendment rights. 1 

The subpoena at issue here was served upon White 
House Counsel Philip Buchen prior to trial in the prin- 
cipal case on October 24, 1971. It directed Mr. Buchen to 
appear and produce "all tapes and transcripts of White 
House conversations during the period of April 16 
through May 10, 1971, at which 'May Day' demonstra- 
tions (5/3-5/7/71) were discussed." Following unsuccess- 
ful efforts by Mr. Buchen to have the subpoena 
quashed, counsel for former President Nixon [herein- 
after Mr. Nixon] filed their motion to quash, and the 
Court granted a stay of its order directing compliance 
with the subpoena pending the outcome of Mr. Nixon's 
motion. Matters remained in this state until after trial 
of the principal case. Plaintiffs, in February 1976, began 
to proceed against defendant Mitchell and filed a sup- 
plemental memorandum in oppositin to Mr. Nixon's 



1 The damages awarded were the following: 

A. For False Arrest and False Imprisonment: 

(1) for 12 hours or less of detention, $120; 

(2) for 12 to 24 hours of detention, $360; 

(3) for 24 to 48 hours of detention, $960; 

(4) for 48 to 72 hours of detention, $1,800. 

B. For Violation of First Amendment Rights: $7,500 for each 
class member and $7,500 for Congressman Dellums. 

C. For Cruel and Unusual Punishment: $500 for each member 
of the plaintiff class. 

D. For Malicious Prosecution: 

(1) $3,000 for each of eight persons who were defendants in a 
1971 criminal trial; 

(2) $50 for all other class members. 

The judgment for cruel and unusual punishment was rendered 
against the District of Columbia alone. All other awards run jointly 
and severally against defendants Powell, Wilson, and the District 
of Columbia. Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977), n.6 at 
p. 174. 



295 

motion to quash. Mr. Nixon filed a responsive memo- 
randum. 

Mr. Nixon's original contentions in support of his 
motion to quash were (a) that the President has an 
absolute privilege against discovery of presidential con- 
versations as documents for use in civil litigation; (b) 
that even if the presidential privilege were presumptive 
instead of absolute, it could be overcome only upon a 
showing of compelling need and not merely by a show- 
ing of relevance; and (c) that to allow the White House 
counsel to review presidential recordings and docu- 
ments to comply with the subpoena would be an in- 
fringement upon presidential confidentiality and upon 
Mr. Nixon's personal privacy with respect to conversa- 
tions with his family, friends, and professional inti- 
mates. On March 10, 1976, the Court found against Mr. 
Nixon on the grounds that (a) there is no absolute presi- 
dential privilege to bar discovery in criminal or civil 
litigation; that (b) assuming a former President in lieu 
of an incumbent can raise executive privilege against 
judicial process, such a privilege is presumptive and can 
be overcome by a sufficient showing of specific and 
substantial need; and finally that (c) Mr. Nixon's claims 
that the White House counsel's review of the tapes 
would be an undue infringement upon presidential con- 
fidentiality and personal privacy were frivolous. 2 

On April 8, 1976, Mr. Nixon appealed from the order 
of the Court. The Court of Appeals rendered a decision 
on June 28, 1977, upholding the denial of Mr. Nixon's 
motion to quash and noting that in civil litigation, just 
as in criminal litigation, there is no absolute presiden- 
tial privilege against discovery. Dellums v. Powell, 561 
F.2d 242 (D.C. Cir. 1977). Rather, a presumptive presi- 
dential privilege exists, which is rebuttable upon a suffi- 
cient showing of specific need, and plaintiffs here have 
met that standard by making "at least a 'preliminary 
showing of necessity' for information that is not merely 
relevant but indeed substantially material to their 



2 See the unpublished memorandum and order of March 10, li»T(i 
(Civil Action No. 2271-71, D.D.C.). 



296 

case/' 3 However, the Court of Appeals recommended 
modification of this Court's memorandum and order to 
establish procedures for the review, transcription, and 
disclosure of the subpoenaed materials that will ade- 
quately protect Mr. Nixon's personal privacy interests. 4 
Plaintiffs have submitted to the Court a proposed 
order and memorandum, consented to by the Adminis- 
trator of General Services [hereinafter "the Administra- 
tor"], suggesting procedures for the review and dis- clo- 
sure of the subpoenaed materials. Mr. Nixon and de- 
fendant Mr. Mitchell oppose plaintiffs' suggestions, and 
they too have submitted a proposed order and support- 
ing memoranda. In addition, the Administrator, who is 
the sole legal custodian of the Nixon presidential mate- 
rials, pursuant to the Presidential Recordings and Mate- 
rials Preservation Act, 44 U.S.C. § 2197 and implement- 
ing regulations, 41 C.F.R. 105.63.103, has filed a state- 
ment addressing only the issue of the screening process 
to be utilized in enforcing the subpoena. The task of the 
Court now is to fashion an order for review and disclo- 
sure of the subpoenaed materials consistent with the 
mandate from the Court of Appeals and to modify its 
outstanding memorandum and order accordingly. The 
following three principal issues must be resolved. 

(1) An appropriate description of the subject matter 
the Administrator's archivists should transcribe within 
the scope of the subpoena; 

(2) the screening procedures to be used by archivists 
in selecting and transcribing; and 

(3) the procedure for the in camera examination of 
the selected transcribed material before release. 

Each issue is addressed below seriatim. 

SCOPE OF THE SUBPOENA 

The crux of the dispute over the scope of the subpoe- 
na is: just what falls within the meaning of the original 
language of the subpoena, which calls for "all tapes and 
transcripts of White House conversations during the 



3 Dellums v. Powell, 561 F.2d 242, at 249 (D.C. Cir. 1977). 
"Id. 



297 

period April 16 through May 10, 1971, at which 'May 
Day' demonstrations (5/3-5/7/71) were discussed." 

Plaintiffs take the position that the wording of the 
subpoena standing alone is not enough. They assert that 
in a large number of conversations during the April 16 
through May 10, 1971 time period, the May Day demon- 
strations were probably discussed in a general context 
of anti-war demonstrations and demonstrators and, 
though the precise phrase "May Day demonstrations" 
in all likelihood was not used, these conversations are 
relevant and should come within the scope of the sub- 
poena. Counsel for the plaintiffs further inform the 
Court that, in the interest of judicial economy, they 
have consulted with counsel for the Administrator's ar- 
chivists and counsel for the plaintiffs in ten separate 
"related" cases in which the tapes for the twenty-five 
day period here are also being sought. 5 

From this consultation comes a "Memorandum of Un- 
derstanding Among Counsel," which applies both to the 
April 16 through May 10, 1971 time period as well as to 
a second time period, March 1, 1971 through May 31, 
1971. Since the second period is inclusive of the time 
period designated in the subpoena at issue, plaintiffs 
propose to save the Administrator's archivists the time 
and effort that would be entailed in conducting review 
and transcription procedures for eleven separate de- 
scriptions relating to the April 16 through May 10, 1971 
time period. Plaintiffs' proposed order is based upon the 
Memorandum of Understanding Among Counsel and 
would have the Administrator transcribe and produce 
all conversations relating "directly or indirectly" or 
having any bearing or significance to any of the follow- 
ing: 

(1) Anti-war demonstrations; 

(2) Anti-war demonstrators; 



*Apton v. Wilson, C.A. 798-72; Kuhn v. Wilson, C.A. 956-71; 
Ream v. Wilson, C.A. 75-0994; Bornheim v. Wilson, C.A. 75-1936; 
Ames v. Wilson, C.A. 76-0490; Feldman v. Wilson, C.A. 76-1149; 
Grossman v. Wilson, C.A. 76-0216; Moran v. Wilson, C.A. 76-1530; 
Robinson v. Wilson, C.A. 75-1680; Wiland v. Wilson, C.A. 75-1604 
October 29, 1977 Memorandum of Understanding Among Counsel. 



298 

(3) Plans of the United States government or any 
officials of the United States government, or of any 
other government, relative to demonstrations held or to 
be held in Washington, D.C. during April or May, 1971; 

(4) Responses of United States government officials, or 
officials of any other government, or of any private 
citizens, relative to demonstrations or other activities of 
persons opposed to the war in Vietnam during April or 
May of 1971; 

(5) Plans, procedures or proposals for handling per- 
sons arrested or to be arrested or otherwise detained or 
controlled for anti-war activities in Washington, D.C. or 
elsewhere during April and May, 1971; 

(6) Authority for law enforcement in the District of 
Columbia during demonstrations. 

(7) Any and all doubts as to whether any given con- 
versation is or is not covered by the above description 
shall be resolved in favor of inclusion. 

Mr. Nixon and defendant Mr. Mitchell oppose plain- 
tiffs' construction of the subpoena. As to the six descrip- 
tive categories, they argue that plaintiffs are attempt- 
ing to enlarge the scope of the subpoena, retroactively, 
which would circumvent plaintiffs' having to make a 
sufficient showing of need to support a broader demand 
for discovery — a requirement which has been estab- 
lished in the extensive litigation before this Court and 
the Court of Appeals. Mr. Nixon and defendant Mr. 
Mitchell also maintain that plaintiffs' proposal provid- 
ing for any doubts to be resolved by the Administrator 
in favor of inclusion further expands the scope of the 
subpoena, and they suggest a preliminary objection pro- 
cedure to offset any overinclusion that may result. 6 Mr. 
Nixon does not object to using language other than the 
original language in the subpoena for the purpose of 
particularizing what is to be transcribed, but the par- 
ticularization, he asserts, should remain "within the 
parameters of all conversations relevant to May Day 
demonstrations (5/3 to 5/7/71)," and would not include 
every conversation pertaining to anti-war demonstra- 
tions or demonstrators. 



6 The preliminary objection procedure is addressed further on in 
this memorandum opinion. 






299 

In determining the proper scope of the subpoena, the 
Court looks first for guidance to the opinion of the 
Court of Appeals. Their principal concern was that only 
those portions of the tapes containing conversations re- 
lating to "the May Day demonstrations" be disclosed 
and not any entire tape simply because a portion of 
that tape may relate to the demonstrations. In Dellums 
v. Powell, supra at 250, the Court of Appeals states: 

* * * If the subpoena is read, as it is capable of 
being read if taken literally, as requiring an entire 
tape to be produced if any portion of it relates to 
the May Day demonstrations, plaintiffs would be 
entitled to discover all conversations recorded on 
such a day, including those of an intensely personal 
nature — some of which would be subject to an inde- 
pendent common law privilege. * * * The District 
Court's memorandum opinion indicates an inten- 
tion to limit discovery to those portions of the re- 
cordings dealing with the demonstrations, but the 
accompanying order denying the motion to quash 
does not so explicitly limit the subpoena. While the 
memorandum opinion could fairly be interpreted as 
impliedly narrowing the apparently unintended 
scope of the subpoena, to avoid any possible misun- 
derstanding we remand with direction to the Dis- 
trict Court to make such limitation explicit in its 
order. 

The Court modifies its order accordingly. 

The contentions raised by plaintiffs, Mr. Nixon, and 
defendant Mr. Mitchell, go beyond the problem of insur- 
ing that only relevant tapes be disclosed. They address, 
instead, another even more fundamental concern of 
what criteria are to be used by the Administrator in 
interpreting which subject matter is relevant. The 
Court's view is that the standard for pretrial discovery 
set forth in Rules 26-37 of the Federal Rules of Civil 
Procedure is liberal and broad, Hickman v. Taylor, 329 
U.S. 495 (1947), and the same standard is interrelated 
and applied to the production of documentary materials 
pursuant to subpoenaes duces tecum under Rule 45 of 



300 

the Federal Rules of Civil Procedure. Freeman v. Selig- 
son, 405 F.2d 1326, 1334-35 (D.C. Cir. 1968). 7 

The judicial application of Rule 45(b), providing for 
the production of documentary evidence, has been that 
subpoenas duces tecum are enforced unless the docu- 
ments sought are "privileged or the subpoena is unrea- 
sonable, oppressive, annoying, or embarrassing/' Free- 
man, supra at 1335; see also, Boeing Airplane v. Cogge- 
shall, 280 F.2d 654 (D.C. Cir. 1960). And whether a 
subpoena duces tecum is unreasonable or oppressive is a 
determination left to the full discretion of the court on 
a case-by-case basis. Premium Service Corporation v. 
Sperry & Hutchinson, 511 F.2d 225, 229 (9th Cir. 1975). 
If the Court "believes the subpoena has a meritorious 
basis but should not be enforced as drafted, it has au- 
thority * * * to modify the subpoena and impose such 
conditions on enforcement as justice may require." Free- 
many supra at 1335; see also, Boeing Airplane, supra at 
659. Generally, courts do not find oppressiveness or un- 
reasonableness when (Da subpoena calls for material 
within the possession, custody, or control of the person 
subject to the subpoena, U.S. v. IBM Corp., 71 F.R.D. 88 
(S.D.N.Y. 1976); (2) the language limits the scope to a 
reasonable period of time and specifies with reasonable 
particularity the subjects to which requested materials 
relate, Democratic National Committee v. McCord, 356 



7 "Rules 26(b), 30(b), and 45(b) and (d) are controlling. These rules 
must be read in pari materia. [Citations omitted]. Rules 45(d) and 
26(b) establish the outer limits of enforcement. Rule 45(d) permits a 
subpoena to order any person to produce papers 'which constitute 
or contain evidence relating to any of the matters within the scope 
of the examination permited by Rule 26(b), but in that event the 
subpoena will be subject to the provisions of subdivision (b) of this 
Rule 45.' Rule 26(b) permits the discovery of 'any matter, not 
privilege, which is relevant to the subject matter involved in the 
pending action,' but is also limited by Rule 30(b). 

"Rules 30(b) and 45(b) impose the following restrictions on en- 
forcement under Rules 45(d) and 26(b): Rule 30(b) confers broad 
power on the court, 'for good cause shown,' to afford relief from a 
subpoena 'which justice requires to protect the party or witness 
[under subpoena] from annoyance, embarrassment, or oppression.' 
Rule 45(b) authorizes the District Court to 'quash or modify the 
subpoena if it is unreasonable and oppressive.' " n. 35. Freeman v. 
Seligson, 405 F.2d 1326 at 1335-1336. 



301 

F. Supp. 1394, 1396 (D.C.D.C. 1972); see also Brown v. 
United States, 276 U.S. 134 (1928); and (3) finally, and 
most importantly for the question at hand, the materi- 
als encompassed are relevant for the purpose of discov- 
ery. 8 

It is undisputed that the subpoena here, as written, 
meets these requirements. The requested presidential 
materials are in the possession, custody, and control of 
the Administrator who, in lieu of the counsel for the 
President, is now, by law, responsible for transcribing 
the described subject matter. The period of April 16 
through May 10, 1971, designates a reasonable time 
limitation; and the language "all conversations at which 
'May Day demonstrations' (5/3/71-5/7/71) were dis- 
cussed" provides a material and relevant framework for 
discovery. 

By the same token, the Court finds that plaintiffs' six 
descriptive categories, which are subject to explicit defi- 
nitions of original language as to situs, time, particular- 
ity, and relevance, are a permissible adjunct in further- 
ing the liberal discovery intended under the Federal 
Rules and for the specific need of inquiry in this case. It 
is not necessary for the purposes of discovery, that 
every conversation transcribed under the original lan- 
guage of the subpoena or any of the six categories be 
admissible at trial. It is only necessary that any conver- 
sation transcribed relate to the demonstrated purpose 
and need for discovery in this case, which is to aid in 
establishing "* * * whether and to what extent, former 
Attorney General Mitchell was involved in the particu- 
lar constitutional violations of May 5, 1971." 9 

In reviewing the tapes for relevant conversations, the 
Administrator should exercise the discretion granted 
him by Congress to transcribe what he deems relevant 
in accord with the description given him. 10 To be tran- 
scribed, conversations need not contain the specific 
words "May Day" or any other catch words but should 
be subject to interpretation if, in the archivists' opinion, 



8 Freeman, supra at 1335. 

9 Dellums, supra at 249. 

10 41 C.F.R. 105.63 (1976) as revised 42 F.R. 40859 and 42 F.R. 
54830. 



302 

the general context or import relates to the subject 
matter of the subpoena as described by the attached 
order. Any doubts may be resolved in favor of inclusion. 
In short, the objective of the Administrator should be to 
ferret out any and all conversations which relate, ex- 
plicitly or by inference, to the subject of whether and to 
what extent the defendant Mr. Mitchell was involved in 
the violations of plaintiffs' fundamental constitutional 
rights during the May Day demonstrations. Defendant 
Mr. Mitchell and Mr. Nixon will have just and ample 
opportunities at the administrative appeal, in camera 
review, and appellate appeal stages of this process to 
raise objections based upon relevance and other privi- 
leges. Even considering arguendo the extreme of overly 
narrow discovery versus overboard discovery, it is far 
better, at this primal stage, to tip the balance in favor 
of leaving no stone unturned, disemboweling any infor- 
mation in the Administrator's custody bearing upon the 
serious allegations at issue. The alternative would be to 
risk overly cautious discovery, which, unlike the specter 
of overbroad discovery, should it happen, could not be 
corrected through pretrial in camera review by both 
parties and the Court. 

The Court therefore accepts and adopts plaintiffs' pro- 
posed particularization of the subpoena as consistent 
with the legitimate purpose and need for discovery in 
this case. 

Though the Court rejects defendant Mr. Mitchell's 
and Mr. Nixon's claims that the proposed particulariza- 
tion unduly expands the scope of the subpoena, the 
Court must briefly address the Memorandum of Under- 
standing Among Counsel resulting from consultation by 
counsel for plaintiffs with counsel in ten separate cases. 
Allowing and directing the Administrator to transcribe 
White House conversations prescribed by the subpoena 
and by the six descriptive categories in this case does 
not establish, inferentially or otherwise, the use or need 
for these materials in other cases. Whether plaintiffs in 
other cases demonstrate the requisite need to have 
presidential materials transcribed by the Administrator 



303 

in this case released to them must be determined by the 
respective courts and parties in those cases. 

THE SCREENING PROCEDURE 

Defendant Mitchell and Mr. Nixon raise a number of 
contentions which are directed at the Administrator 
and the review and transcribing procedure itself. First, 
defendant and Mr. Nixon claim that any order concern- 
ing the review and possible disclosure of presidential 
conversations should be based on a "direct understand- 
ing" of how the review process works, which, they be- 
lieve, neither plaintiffs nor the Administrator possess, 
not having listened to the White House recordings 
before, as prior White House counsel have done. Second, 
defendant Mitchell and Mr. Nixon assert that the Ad- 
ministrator, through his consultation and agreement 
with plaintiffs regarding the order proposed by plain- 
tiffs and the government, has shown a desire to leave 
difficult questions of relevancy to the court and to be 
responsible for relevancy determinations only in the 
broadest context; therefore, significant questions arise 
as to the archivists' ability to be neutral and detached 
and protect the rights and privileges of those whose 
interests would be adversely affected. Third, defendant 
and Mr. Nixon contend that, as a precaution to limit 
unnecessary intrustions on private matters unrelated to 
this case, the archivists should be ordered to skip over 
or spotcheck those portions of the tapes which contain 
unrelated conversations of a highly intimate or personal 
nature. The Administrator has responded to defendant's 
and Mr. Nixon's contentions by submitting to the Court 
a statement which points out the following: 

(1) The archivists did not initiate any meeting be- 
tween themselves and counsel for the plaintiffs, and, of 
course, maintain impartiality as to which proposal — 
plaintiffs or defendant's and Mr. Nixon's — the Court 
should accept. 

(2) The Administrator has assisted plaintiffs in draft- 
ing the language of plaintiffs' proposed order so that it 
would be in compliance with access procedure applica- 
ble to archival processing under the Presidential Re- 



304 

cordings and Materials Preservation Act, 44 U.S.C. 2107 
[hereinafter "the Act"] and 41 C.F.R. 105.63.204, 11 and 
so that the obligations for archival processing under the 
order would be directly upon the Administrator, as pro- 
vided by the Act, instead of upon an appointed Special 
Master. 12 

(3) The actual screening procedure employed in the 
review and transcription of the tapes should be left to 
the Administrator's archivists as provided for by Con- 
gress and affirmed by the Supreme Court. 

After considering defendant's and Mr. Nixon's conten- 
tions with respect to the screening procedures and the 
role of the Administrator, and upon considering the 
response of the Administrator, the Court is unconvinced 
that the government archivists cannot or should not 
perform their statutory duty of reviewing and transcrib- 
ing the subpoenaed materials. The Court deems frivo- 
lous any suggestion that the archivists lack some spe- 
cial "understanding" of the review process necessary to 
screen the White House materials, and is fully confi- 
dent that the archivists have the professional integrity 
and ability to carry out their function in a neutral and 
detached manner and to protect the rights and privi- 
leges of any persons whose interests in the material 
may be adversely affected. Clearly, from the Act itself, 
the implementing regulations, and the reasoning set 
forth at length by a three-judge court in Nixon v. GSA, 
408 F. Supp. 321 (D.D.C. 1976) and by the Supreme 
Court of the United States in Nixon v. Administrator of 
General Services, 433 U.S. 425 (1977), the Administrator 



11 See n. 18(b) infra for text of the pertinent portion of 41 C.F.R. 
105.63.204. 

12 Before the Act was upheld as constitutional by the Supreme 
Court in June 1977, Nixon v. Administrator of General Services, 433 
U.S. 425 (1977), the Court of Appeals, when ruling upon this case in 
January 1977, provided that a Special Master be appointed to 
review and transcribe the subpoenaed materials because of an 
injunction barring screening by an archivist. Dellums, supra, n. 18 
at p. 250. Now that the Act and the regulations calling for screen- 
ing by the Administrator, 41 C.F.R. 105.203-204, apply in full force, 
the need for appointment of a Special Master is eliminated. See 
Nixon v. Administrator of General Services, supra at 429-30. 



305 

is credited with having an "unblemished" 13 record for 
discretion in handling confidential material. 14 And by 
law, he is entrusted with the autonomous responsibility 
of carrying out screening processes guided by "long- 
standing archival screening standards." 15 

Accordingly, the order directing the review and tran- 
scription of the subpoenaed materials will not regulate 
or interfere with, in any respect, the actual screening 
procedures employed by the archivists. Mr. Nixon's and 
defendant's contentions regarding this aspect of the 
process are rejected. 

THE IN CAMERA REVIEW PROCEDURE 

Having defined the relevant scope and subject matter 
of the subpoena duces tecum at issue, and having dis- 
posed of contentions raised about the screening proce- 
dures to be used in the review and transcription of the 
subpoenaed White House tape recordings, the Court 
now turns to the in camera review process prescribed by 
the Court of Appeals for protection of Mr. Nixon's pri- 
vacy interests. The provision for an in camera review 
procedure is the second 16 of two principal modifications 
that must be made to the Court's original order before 
the subpoena can issue: 

* * * Following transmittal of relevant materials to 
the Court, and before they are to be turned over to 
counsel for plaintiffs, Mr. Nixon shall be afforded 
the right to assert "any rights, defenses or privi- 
leges" — whatever they might be * * * 

* * * we contemplate a procedure in the District 
Court identical to that outlined in this court's en 
banc opinion in Nixon v. Sirica, supra, 159 U.S. 
App. D.C. at 79, 487 F.2d at 721. While the parties 
are directed to that order, we think it sufficient to 
indicate that the procedure there developed contem- 



13 Nixon v. Administrator, supra at 452. 

14 Id. 

15 Nixon v. Administrator, supra at n. 29, p. 467. 

16 The first modification, discussed above, is that the Administra- 
tor submit to the Court only isolated transcripts of those protions 
of the recorded conversations which relate to the May Day activi- 
ties. 



306 

plates in camera review of the challenged material 
at which time Mr. Nixon will be able to assert any 
claims of privilege with particularity. Counsel for 
plaintiffs will be entitled to inspect the materials in 
chambers to assist the Court in determining the 
validity of any claim of privilege. 

Dellums, supra at 250-251. 

The opposing parties interpret the prescribed in 
camera procedure differently and disagree as to when 
counsel for the plaintiffs are entitled to inspect the 
transcribed materials. Plaintiffs take the position that 
immediately following the transmittal of the tran- 
scribed materials to the Court, and after Mr. Nixon has 
raised any rights, defenses, or privileges he may wish to 
assert, counsel for plaintiff will be entitled to inspect 
the materials in chambers to assist the Court in deter- 
mining the validity of any claim of privilege. Mr. Nixon 
and Mr. Mitchell take the position that counsel for 
plaintiffs should be allowed to inspect the materials 
only after the Court has made a determination on Mr. 
Nixon's preliminary relevance objections and returned 
to the Administrator those materials the Court deems 
irrelevant. Materials deemed relevant by the Court and 
still in dispute would then be contested and inspected 
by counsel for plaintiffs. Based upon a careful reading 
of the mandate from the Court of Appeals and a thor- 
ough examination of the procedure followed in Nixon v. 
Sirica, 487 F.2d 700 (D.C. Cir. 1973) at 721, which the 
Court of Appeals directed this Court to follow, this 
Court agrees, in part, with both parties. Counsel for 
plaintiffs will be entitled to inspect the transcribed ma- 
terials in chambers, should the court find it necessary 
to examine the materials themselves to resolve disputes 
over any right, defense, or privilege asserted by Mr. 
Nixon. Mr. Nixon or his representative will be entitled 
to raise relevance objections, and any other objections 
designated by a Vaughn v. Rosen-like 17 index before 
any in camera inspection takes place. However, as the 
Court will set out below, an in camera review proce- 



17 Nixon v. Sirica, supra, n. 15, p. 721; cf. Vaughn v. Rosen, 484 
F.2d 820 (D.C. Cir. 1973). 



307 

dure, which is consistent with that followed in Nixon v. 
Sirica, and tailored to the circumstances of this case 
varies somewhat from the proposals submitted by either 
side. 

(1) At all times during the review and transcription of 
those portions of designated tapes that the Administra- 
tor's archivists deem relevant under the subpoena, as 
interpreted by the order of this Court, Mr. Nixon or his 
representative shall have an unqualified right to be 
present; however, the determination of what constitutes 
material in compliance with the subpoena shall be left 
to the Administrator. Dellums v. Powell, supra at 250. 
During the transcribing, or at some later time, but in 
any event before counsel for Mr. Nixon raise any claim 
of right, defense, or privilege with the Court, Mr. Nixon 
or his reprsentative should itemize and index the tran- 
scribed material and correlate indexed items with par- 
ticular claims of privilege. See Nixon v. Sirica, supra at 
721. 

(2) While the transcribed materials are still in custo- 
dy, possession and control of the Administrator and 
before their submission to the Court, Mr. Nixon should 
be given notice of contemplated release of the materials 
and opportunity to file and exhaust his administrative 
objections, in accordance with 41 C.F.R. 105-63.303 and 
41 C.F.R. 105-63.204(f). 18 



18 These regulations were passed by Congress in 1976 to enforce 
Section 102(b) of the Act. 44 U.S.C. 2107. 

(a) § 105-63.303. Access for use in judicial proceedings, provides 
in pertinent part: 

In accordance with the provisions of Subpart 105-63.2, and 
subject to any rights, defenses, or privileges which the Federal 
Government or any person may invoke, the Presidential his- 
torical materials in the custody and control of the Administra- 
tor of General Services will be made available for use in any 
judicial proceeding, and are subject to subpoena or other 
lawful process. * * * 

(b) § 105.63.204(f). Access procedures, states: 

Prior to releasing Presidential historical materials in accord- 
ance with an access authorized under §§ 105.63-302 or 105- 
63.303, the Administrator will give Mr. Nixon notice of the 
nature and identity of, and at his request allow him access to, 

Footnotes continued on next page 



308 

(3) Upon compliance with 41 C.F.R. 105-63.204(0, the 
Administrator will transmit to the Court the materials 
he deems relevant. Following the transmittal of these 
materials, but before they are turned over to counsel for 
plaintiffs, Mr. Nixon shall be afforded the right to 
assert any rights, defenses, or privileges he may wish to 
raise in accordance with the provisions of 41 C.F.R. 105- 
63.303, Dellums, supra at 250. These claims of right, 
defense, or privilege are to be designated by an itemized 
index of the materials containing correlated descrip- 
tions specific enough to identify the basis of the particu- 
lar claim or claims, Nixon v. Sirica, supra at 721, which 
should be submitted to the Court and opposing counsel 
at the time the claims are asserted. At this time, the 
Court will consider all of the claims raised by Mr. 
Nixon, and on the basis of reasoning advanced by the 
parties in their papers and at a hearing, if the Court 
deems it necessary, any material that the Court consid- 
ers irrelevant or excusable on other bases will be re- 
turned to the Administrator without being shown to 
counsel for the plaintiffs. 

(4) Should the Court need or choose to examine any 
materials to determine the validity of any privilege, the 
Court will conduct an in camera inspection and hearing 
with respect to the disputed materials, and counsel for 
both Mr. Nixon and plaintiffs will be entitled to be 
present. 

(5) Mr. Nixon and plaintiffs will have ten (10) days 
within which to appeal any ruling adverse to their pur- 
ported interests. 



Footnotes continued from last page 

those Presidential historical materials which the archivists 
have determined are covered by the subpoena, or other lawful 
process, or request. The notice will also inform Mr. Nixon that 
he may file a claim with the Administrator objecting to the 
release of all or portions of the described materials within 5 
working days of his receiving the notice described herein. The 
claim should detail the alleged rights and privileges of Mr. 
Nixon which would be violated by the release of the materials. 
The Administrator will refrain from releasing any of the mate- 
rials to the requestor during this period, and while any claim 
of right or privilege is pending before him will refrain from 
releasing the materials subject to the claim. 



309 



With respect to any materials received by counsel in 
camera, or any materials eventually released to counsel 
for potential use at trial, disclosure will be restricted to 
counsel unless and until the materials become part of 
the public record. Mr. Nixon is entitled to a protective 
order which provides: 

(a) that before any of the transcribed materials are 
disclosed at trial or made part of the trial record, he 
will be given "due and ample notice and an opportunity 
to litigate the issue of need for public disclosure/' 19 and 

(b) that determinations of this is to be made "in the 
light of the actual litigating posture of the case and the 
contents of the materials/' 20 

Should Mr. Nixon desire such an order, he should 
make proper application to the Court, including a 
memorandum of points of authority and a proposed 
order. Of course, the requirements of confidentiality for 
protection against improper disclosure which apply to 
all of the transcribed materials, unless and until they 
are made part of the public record, apply with double 
force to the substance of any in camera proceeding the 
Court may conduct. United States v. Nixon, 418 U.S. 
683, 714-715 (1974), 21 and to any materials given to 
counsel but not put into evidence. Nixon v. Warner 

Communications, Inc., U.S. , 46 Law Week 

4320 (April 18, 1978). Counsel are admonished accord- 
ingly. 



19 Dellums, supra, at 249. 

20 Id. 

21 It is elementary that in camera inspection of evidence is 
always a procedure calling for scrupulous protection against any 
release or publication of material not found by the court, at that 
stage, probably admissible in evidence and relevant to the issues of 
the trial for which it is sought. That being true of an ordinary 
situation, it is obvious that the District Court has a very heavy 
responsibility to see to it that Presidential conversations, which are 
either not relevant or not admissible, are accorded that high degree 
of respect due the President of the United States. 



310 

Upon the filing of this memorandum and consistent 
with the order attached hereto, the subpoena duces 
tecum should issue. 



William B. Bryant, 
United States District Judge. 



November 8, 1978. 



United States District Court for the District of 
Columbia 



Civil Action No. 2271-71 
Ronald V. Dellums et al., plaintiffs, 

v. 

James M. Powell et al., defendants. 



Order 



For the reasons set forth in the accompanying memo- 
randum opinion and in accordance with the provisions 
of the Presidential Recordings and Materials Preserva- 
tion Act, 44 U.S.C. 2107; and its implementing regula- 
tions, 41 C.F.R 105.63 et seq.; and the prior decisions of 
this Court* and the United States Court of Appeals for 
the District of Columbia Circuit, it is this 8th day of 
November, 1978. 

ORDERED, that this Court's Memorandum and Order 
of March 10, 1976 be modified as provided herein, and 
that the subpoena duces tecum served in the above cap- 
tioned matter, on October 24, 1974, be modified and 
enforced in the following manner: 

(1) That the Administrator of General Services shall 
forthwith cause to be carried out the following duties on 



311 

or before September 1, 1978, unless said date be ex- 
tended by further order of this Court: 

(a) He or his duly authorized designee(s) shall person- 
ally listen to all tape-recordings included within the 
Nixon Presidential Historical Materials, whether or not 
such tapes have been previously transcribed, made 
during the period April 16, 1971, through May 10, 1971, 
inclusive. 

(b) He shall cause to be transcribed any and all refer- 
ences contained on such tapes which relate, directly or 
indirectly, or have any bearing on or significance to, 
any of the following: 

(i) Anti-war demonstrations; 

(ii) Anti-war demonstrators; 

(iii) Plans of the United States government or any 
officials of the United States government, or of any 
other government, relative to demonstrations held or to 
be held in Washington, D.C. during April or May, 1971; 

(iv) Responses of United States government officials, 
or officials of any other government, or of any private 
citizens, relative to demonstrations or other activities of 
persons opposed to the war in Vietnam during April or 
May of 1971; 

(v) Plans, procedures or proposals for handling per- 
sons arrested or to be arrested or otherwise detained or 
controlled for anti-war activities in Washington, D.C. or 
elsewhere during April and May, 1971; 

(vi) Authority for law enforcement in the District of 
Columbia during demonstrations. 

Any and all doubts as to whether any given conversa- 
tion is or is not covered by the above description shall 
be resolved in favor of inclusion. 

(2) Richard M. Nixon or his agent or attorney (herein- 
after "Mr. Nixon") shall be allowed to be present during 
the listening procedure as provided for by the imple- 
menting regulations and by this Court's memorandum 
opinion. The determination of what consitutes material 
that must be transcribed in accordance with this Order, 
however, shall be the sole province of the Administra- 
tor, and neither Mr. Nixon nor his representative shall 
be permitted to object in any way, by word or by sign, 



312 

or to argue against, or otherwise seek to influence, the 
decision of the Administrator concerning what should 
and what should not be transcribed; and it is 

FURTHER ORDER, that during the transcribing 
process, or at some later time, but before Mr. Nixon 
raises any claims of right, defense, or privilege, Mr. 
Nixon or his representative should itemize and index 
the transcribed materials and correlate the indexed 
items with particular claims of privilege; and it is 

FURTHER ORDER, that after compliance with sec- 
tion 105.204(f) of the implementing regulations pertain- 
ing to the preservation and protection of and access to 
the presidential historical materials of the Nixon Ad- 
ministration, the Administrator of General Services 
shall turn over to this Court, in camera, the transcripts 
made by him pursuant to this Court's order; and it is 

FURTHER ORDER, that after the transcribed mate- 
rials are transmitted to the Court, and before any of 
these materials are made available to counsel for plain- 
tiffs, Mr. Nixon shall be afforded the right to raise any 
rights defenses, or privileges he wishes, based upon 
claims designated in an itemized Vaughn index submit- 
ted to the Court and counsel for plaintiffs; and it is 

FURTHER ORDER, that both counsel for Mr. Nixon 
and counsel for plaintiffs will be entitled to be present 
at any in camera inspection of the materials that the 
Court may choose to conduct in order to determine the 
validity of asserted objections; and it is 

FURTHER ORDER, that all counsel are forbidden 
from disclosing any of the transcribed materials or the 
substance of the in camera proceedings, pending further 
order of the Court; and finally, it is 

FURTHER ORDER, that Mr. Nixon or plaintiffs shall 
have ten (10) days within which to file an appeal from 
any ruling that either of them considers adverse to 
their interests. 

William B. Bryant, 

United States District Judge. 



United States District Court Southern District of New 

York 



76-4344 (VLB) 
John Cervase, plaintiff, 

v. 
Charles B. Rangel, defendant. 

VINCENT L. BRODERICK, U.S.D.J. 



I. Memorandum Order 

This action, in which plaintiff seeks declaratory and 
injunctive relief, is based on defendant's alleged abuse 
of the franking privileges that are granted him as a 
member of Congress. 1 

Plaintiff is a United States citizen and a taxpayer of 
the United States and the State of New Jersey. Defend- 
ant represents the Nineteenth Congressional District of 
New York and is a member of the Congressional Black 
Caucus, Inc. Under 39 U.S.C. § 3210, defendant has the 
privilege of sending mail under frank in order to facili- 
tate the conduct of defendant's offical duties. 

In his complaint, plaintiff alleges that defendant has 
violated 39 U.S.C. § 3210 2 by using his frank to distribute 
Congressional Black Caucus literature, which literature 
is allegedly ''unrelated to the official business" of de- 
fendant. Plaintiff further alleges that defendant's viola- 
tion of 39 U.S.C. § 3210 has resulted in increased federal 
tax liability both for plaintiff and for the public at 
large. 

(313) 



314 

Defendant has moved, pursuant to Rule 12(b)(3), 
Fed.R.Civ.P., to dismiss the complaint for lack of subject 
matter jurisdiction. Plaintiff has moved to amend his 
complaint to include allegations that jurisdiction is 
based on 28 U.S.C. § 1339 3 and that defendant has vio- 
lated 39 U.S.C. § 3215. 4 

II 

I find that plaintiff does not have standing to bring 
this action; therefore, I grant defendant's motion to dis- 
miss. 5 Because plaintiffs lack of standing would not be 
cured by the proposed amendment to his complaint, 
plaintiffs motion to amend is denied. 

Ill 

The Supreme Court has often emphasized that "[n|o 
principle is more fundamental to the judiciary's proper 
role in our system of government than the constitution- 
al limitation of federal court jurisdiction to actual cases 
or controversies. See Flast v. Cohen, 392 U.S. 83, 95 
(1968). The concept of standing is part of this limita- 
tion. " Simon v. Eastern Kentucky Welfare Rights Orga- 
nization, 426 U.S. 26, 37 (1976). 

The key to the concept of standing is the injury a 
plaintiff alleges that he has suffered or is going to 
suffer. See Flast v. Cohen, 392 U.S. 83, 91 (1968). Here 
the only injury alleged by plaintiff is that defendant's 
allegedly illegal acts have caused or will cause an in- 
crease in his federal tax liability. Thus if plaintiff has 
standing it must be as a federal taxpayer. 

The leading Supreme Court case on taxpayer stand- 
ing is Flast v. Cohen, supra. In Flast, a group of taxpay- 
ers sued certain federal officials. Plaintiffs alleged, inter 
alia, that a federal statute, under which defendants 
sought to finance instruction and materials purchases 
in religious and sectarian schools, violated the religion 
clauses of the First Amendment. Given these allega- 
tions, the Court framed the standing issue as follows: 

In Frothingham v. Mellon, 262 U.S. 447 (1923), 
this Court ruled that a federal taxpayer is without 



315 

standing to challenge the constitutionality of a fed- 
eral statute. That ruling has stood for 45 years as 
an impenetrable barrier to suits against Acts of 
Congress brought by individuals who can assert 
only the interest of federal taxpayers. In this case, 
we must decide whether the Frothingham barrier 
should be lowered when a taxpayer attacks a feder- 
al statute on the ground that it violates the Estab- 
lishment and Free Exercise Clauses of the First 
Amendment. 
392 U.S. at 85. 

After an extended discussion of the issue, the Court 
enunciated a two-pronged test to determine whether a 
federal taxpayer has standing. To establish standing, a) 
a plaintiff must show a nexus between his taxpayer 
status and the legislation attacked, which legislation 
must constitute an exercise by Congress of its power 
under the taxing and spending clause of Article I, § 8 of 
the Constitution; and b) plaintiff must establish a nexus 
between taxpayer status and an alleged constitutional 
infringement: 

Thus, our point of reference in this case is the 
standing of individuals who assert only the status 
of federal taxpayers and who challenge the consti- 
tutionality of a federal spending program. Whether 
such individuals have standing to maintain that 
form of action turns on whether they can demon- 
strate the necessary stake as taxpayers in the out- 
come of the litigation to satisfy Article III require- 
ments. 

The nexus demanded of federal taxpayers has 
two aspects to it. First, the taxpayer must establish 
a logical link between that status and the type of 
legislative enactment attacked. Thus, a taxpayer 
will be a proper party to allege the unconstitution- 
ality only of exercises of congressional power under 
the taxing and spending clause of Art. I, § 8, of the 
Constitution. It will not be sufficient to allege an 
incidental expenditure of tax funds in the adminis- 
tration of an essentially regulatory statute. * * * 
Secondly, the taxpayer must establish a nexus be- 



316 

tween that status and the precise nature of the 
constitutional infringement alleged. Under this re- 
quirement, the taxpayer must show that the chal- 
lenged enactment exceeds specific constitutional 
limitations imposed upon the exercise of the con- 
gressional taxing and spending power and not 
simply that the enactment is generally beyond the 
powers delegated to Congress by Art. I, § 8. When 
both nexuses are established, the litigant will have 
shown a taxpayer's stake in the outcome of the 
controversy and will be a proper and appropriate 
party to invoke a federal court's jurisdiction. 
Id. at 102-03. 

Applying this two-pronged test, the Court concluded 
that the taxpayer in Flast had "standing to invoke a 
federal court's jurisdiction for an adjudication on the 
merits." Id. at 106. 

Flast is still the law on the issue of taxpayer stand- 
ing. See, e.g., United States v. Richardson, 418 U.S. 166 
(1974); Schlesinger v. Reservists Committee To Stop the 
War, 418 U.S. 208 (1974). However, Flast itself empha- 
sized that, in determining whether a particular taxpay- 
er plaintiff has standing, consideration must be given to 
the nature of the claim such plaintiff advances. Flast, 
392 U.S. at 101. In this case plaintiff claims that defend- 
ant has violated a federal statute; plaintiff does not 
claim, as plaintiffs in Flast claimed, that the relevant 
federal statute is unconstitutional. I must therefore de- 
termine whether the Flast test, which was announced 
in a case that involved alleged constitutional violations, 
applies where the plaintiff alleges only statutory viola- 
tions. 

On the basis of the relevant case law, I find that the 
Flast test applies. Application of that test leads to the 
conclusion that plaintiff does not have standing. 

Perhaps the most important case in determining 
whether the Flast test applies is Schlesinger v. Reserv- 
ists Committee To Stop the War, 418 U.S. 208 (1974). In 
Reservists Committee, respondents, who included five 
committee members who were U.S. citizens and taxpay- 
ers, brought a class action on behalf of all U.S. citizens 



317 

and taxpayers. Respondents challenged the Army Re- 
serve membership of Members of Congress as violative 
of the Incompatibility Clause of the Constitution, Art. I, 
§ 66, cl. 2. 6 The Supreme Court held that respondents did 
not have standing either as citizens or as taxpayers. 418 
U.S. at 209. 

The Court relied on Flast with respect to taxpayer 
standing, and the Court's reliance on Flast suggests 
that the Flast test should be applied here: 

Consideration of whether respondents have stand- 
ing to sue as taxpayers raises a different question 
from whether they may sue as citizens. Flast v. 
Cohen, supra, established that status as a taxpayer 
can, under certain limited circumstances, supply 
the personal stake essential to standing. * * * 

Here the District Court, applying the Flast hold- 
ing, denied respondents' standing as taxpayers for 
failure to satisfy the nexus test. We agree with that 
conclusion since respondents did not challenge an 
enactment under Art. I, § 8, but rather the action 
of the Executive Branch in permitting Members of 
Congress to maintain their Reserve status. 
Id. at 227-28 (footnotes omitted; emphasis added). 

Reservists Committee suggests that the Flast test is to 
be strictly applied to bar taxpayer suits that do not 
involve allegations that a federal statute is unconstitu- 
tional. Reservists Committee distinguishes between al- 
legedly unconstitutional statutes and allegedly unconsti- 
tutional conduct of government officials. Alleging the 
former may confer standing, but alleging the latter will 
not. It would seem to follow that the mere allegation of 
illegal conduct by a Congressman does not suffice to 
confer standing on a taxpayer. 

Several lower court cases support this conclusion. 

In Public Citizen, Inc. v. Simon, 539 F.2d 211 (D.C. 
Cir. 1976), taxpayers sought to recover from the Secre- 
tary of the Treasury all salaries that had been paid to 
persons on the White House staff for a period during 
which such persons were devoting most of their time to 
the presidential election campaign. Taxpayer plaintiffs 
alleged that defendant Secretary's payment of such sal- 



318 

aries violated both the Constitution and a federal stat- 
ute. Id. at 213. On the issue of standing, the D.C. Circuit 
relied on, inter alia. Reservists Committee and conclud- 
ed that the taxpayer plaintiffs did not have standing. 
The court also cited Flast as denying standing to federal 
taxpayers who do not squarely attack the validity of 
taxing and appropriation statutes: 

This is an area of the law where the result is 
clear, in view of the cases, but there is less clarity 
in the doctrinal development. What was wrought by 
the Flast opinion — in opening the door to taxpayer 
actions, yet opening it only part way — was pragmat- 
ic in result, avoiding the flood of all manner of 
taxpayer actions. And yet it was rooted in a concep- 
tual underpinning, permitting federal taxpayer 
standing in a class of cases where taxpayer suits 
were particularly appropriate and manageable — 
specifically, in cases involving the validity of taxing 
and appropriation statutes (as distinguished from 
cases involving "incidental expenditure[s] of tax 
funds in the administration of an essentially regu- 
latory statute"). 
Id. at 218, quoting Flast, 392 U.S. at 102. Thus the Flast 
test barred plaintiffs' suit in Public Citizen, Inc. even 
though plaintiffs had alleged that defendant's conduct 
was violative of both the Constitution and a federal 
statute. 

In Tax Analysts and Advocates v. Simon, 390 F.Supp. 
927 (D.D.C.), appeal dismissed, 512 F.2d 992 (D.C. Cir. 
1975), affd sub nom. Tax Analysts and Advocates v. 
Blumenthal, 566 F.2d 130 (D.C. Cir. 1977), cert, denied, 
98 S.Ct. 1280 (1978), plaintiffs sought a delaratory judg- 
ment that certain Revenue Rulings of the Internal Rev- 
enue Service were unlawful because such rulings violat- 
ed the Internal Revenue Code. On the issue of the tax- 
payer standing of plaintiffs, who alleged only statutory 
violations, the district court applied the Flast test and 
concluded that the absence of constitutional attack 
upon a Congressional enactment was fatal to plaintiffs: 



319 

The Flast exception is a rigid one and the only 
exception to the Frothingham guidelines. Moreover 
it speaks in terms of constitutional challenges to 
Congressional action, not executive or administra- 
tive action. Since Plaintiffs Field and TAA as feder- 
al taxpayers do not assert the unconstitutionality of 
the IRC provisions in question here, but rather 
attack administrative rulings of the IRS interpret- 
ing those provisions, the Plaintiffs as taxpayers do 
not fall within the narrow exception of Flast v. 
Cohen and thus their taxpayer standing arguments 
must fall, particularly in light of two recent deci- 
sions of the Supreme Court in United States v. 
Richardson, * * * and Schlesinger v. Reservists 
Committee To Stop the War. * * * 
390 F.Supp. at 935. 

On appeal, the D.C. Circuit explicitly affirmed the dis- 
trict court's conclusion as to taxpayer standing "on the 
rationale stated in [the district court's] opinion/' 566 
F.2d at 134 (footnote omitted). 7 

Thus the Flast test is applicable in this case. Applica- 
tion of that test results in the conclusion that plaintiff, 
qua taxpayer, 8 lacks standing. 9 

SO ORDERED. 

Vincent L. Broderick, U.S.D.J. 

Dated: November 2, 1978. 
New York, N.Y. 



United States District Court, Southern District of New 

York 



76 Civil 4344 (VLB) 

John Cervase, plaintiff, 

v. 

Charles B. Rangel, defendant. 



320 
Judgment 

Defendant having moved the Court to dismiss the 
complaint, pursuant to Rule 12(b)(3), of the Federal 
Rules of Civil Procedure, and the said motion having 
come on before the Honorable Vincent L. Broderick, 
United States District Judge, and the Court thereafter 
on November 6, 1978, having handed down its memo- 
randum decision granting the said motion, it is, 

ORDERED, ADJUDGED and DECREED: That the 
complaint be and is hereby dismissed. Plaintiffs motion 
to amend complaint is denied. 

Raymond F. Burghardt. 

Dated: November 8, 1978. 
New York, N.Y. 



In the United States District Court for the Western 
District of Louisiana, Lake Charles Division 



Criminal No. 78-30013 

United States of America 

v. 

Otto E. Passman 



Messrs. Jeffrey S. White and David R. Scott, U.S. 
Department of Justice, Post Office Box 50168, F Street 
Station, Washington, DC 20004. Hon. Edward L. Sha- 
heen and William Goode, United States Attorney and 
Assistant United States Attorney, Post Office Box 33, 
Shreveport, LA 71161, for the United States of America. 

Camille F. Gravel, Jr., Gravel, Roy & Burnes, Post 
Office Box 1792, Alexandria, LA 71301. William W. 
Taylor III, James Hamilton and James Ginsburg, Gins- 
burg, Feldman & Bress, Suite 30, 1700 Pennsylvania 
Ave., N.W., Washington, DC 20006, for defendant. 

EARL E. VERON, United States District Judge: 

Ruling on Motions 

A seven count indictment was filed in the District of 
Columbia on March 31, 1978 against Otto E. Passman. 
This case was subsequently transferred to the Western 
District of Louisiana. Otto E. Passman was a United 
States Congressman from the State of Louisiana from 
January 1947 until January 1977. This indictment 

(321) 



322 

charged Mr. Passman with violations of 18 U.S.C. § 371 
(conspiracy), 18 U.S.C. § 201(c)(1) (bribery), and 18 U.S.C. 
§ 201(g) (illegal gratuity). 1 

The defendant filed two pre-trial motions on July 14, 
1978. The first motion seeks to have the indictment 
dismissed because of the alleged unconstitutionality of 
18 U.S.C. § 201 (c)(1) and (g). The second motion seeks to 
have this court dismiss the indictment or compel elec- 
tion of counts of the indictment asserting multiplicity, 
double jeopardy, and danger of a compromise verdict by 
the jury. 

Both motions considered herein are denied. 

I. MOTION TO DISMISS INDICTMENT 

Mr. Passman argues that the indictment should be 
dismissed "because the statute under which such pros- 
ecution is being conducted, 18 U.S.C. § 201, applicable to 
all counts in said indictment, is overbroad and so gener- 
al, vague and obscure that it fails to set any ascertain- 
able standards by which guilt or innocence may be de- 
termined." (Defendant's Motion to Dismiss Indictment.) 
More specifically, the defendant asserts that 18 U.S.C. 
§ 201 (c)(1) and (g) 2 do not meet constitutional muster as 
prescribed by the first and fifth amendments to the 
United States Constitution because they are both vague 
and overbroad and therefore violate due process of law 



1 On April 28, 1978, a second indictment was filed against Mr. 
Passman in the District of Columbia which was later consolidated 
with the March 31 indictment. This second indictment of April 28 
is not at issue in this decision. 

2 18 U.S.C. § 201 (c)(1) and (g) provide as follows: 

(c) Whoever, being a public official or person selected to be a 
public official, directly or indirectly, corruptly asks, demands, 
exacts, solicits, seeks, accepts, receives, or agrees to receive any- 
thing of value for himself or for any other person or entity, in 
return for: 

(1) being influenced in his performance of any official 
act; or * * * 

(g) Whoever, being a public official, former public official, or 
person selected to be a public official, otherwise than as provided 
by law for the proper discharge of official duty, directly or indi- 
rectly asks, demands, exacts, solicits, seeks, accepts, receives, or 
agrees to receive anything of value for himself for or because of 
any official act performed or to be performed by him; or 



323 

and inhibit free speech. We are not aware of any case 
that has ever held § 201 unconstitutional on these 
grounds. 

In the leading case of United States v. Brewster, 506 
F.2d 62, 76-77 (D.C. Cir. 1974), the court explicitly 
upheld the constitutionality of 18 U.S.C. § 201 (g). 3 This 
case involved the prosecution of a United States Sena- 
tor who had been charged with violating 18 U.S.C. § 201 
(c) but convicted of violating 18 U.S.C. § 201 (g). First, 
the court addressed the vagueness issue: 

Manifestly, then, the language of Section 201 (g), 
as authoritatively interpreted by the Supreme 
Court in its Brewster decision, "give[s] the person of 
ordinary intelligence a reasonable opportunity to 
act accordingly/ ' The section's standards are suffi- 
ciently explicit to prevent delegation of "basic 
policy matters to policemen, judges, and juries for 
resolution on an ad hoc and subjective basis, with 
the attendant dangers of arbitrary and discrimina- 
tory application. " Hence, Section 201 (g) is not im- 
permissibly vague even under the standards applied 
to statutes governing the conduct of average citi- 
zens. That 201 (g) is directed at the conduct of 
public officials, who should exercise extraordinary 
caution to avoid acts potentially violative of their 
public trust, makes us even more reluctant to 
accept the argument that the Section is vague. 4 

Mr. Passman's assault on 18 U.S.C. §201 (c)(1) is 
predicated on the mistaken belief that the word "cor- 
ruptly asks" or "receives" anything of value is an un- 
certain standard that makes it impossible to fix a stand- 
ard of guilt. The courts have interpreted this language 
to require a specific intent and have determined that 
the words "corruptly", "value", and "influence" should 
be construed in their ordinary, everyday sense. See 
United States v. Pommerening, 500 F.2d 92, 97 (10th Cir. 
1974), cert, denied 419 U.S. 1088 (1974); United States v. 
Brewster, 506 F.2d 62, 76-77 (D.C. Cir. 1974); United 



3 The court reversed the conviction on other grounds. 

4 United States v. Brewster, 506 F.2d 62, 77 (D.C. Cir. 1974) (foot- 
notes omitted). 



37-148 O - 79 - 22 



324 

States v. Irwin, 354 F.2d 192, 197 (2d Cir. 1965), cert, 
denied 383 U.S. 967 (1965). 

The court in United States v. Irwin, supra, found it 
particularly fitting to distinguish the varying degrees of 
intent required by subsections b, c, d, and e of Section 
201 and the lesser degree of intent required by subsec- 
tions f, g, h, and i. 

The intent to influence, accompanying the cor- 
rupt giving or accepting of something of value, is an 
essential element of § 201 (b, c, d, e) which Congress 
dealt with in separate subsections, and for the vio- 
lation of each of which it attached severe penalties. 
No similar provisions concerning corrupt giving and 
specific intent to influence or induce were included 
in § 201 (f, g, h, i), and the penalty provided for a 
violation of any of those subsections was much less 
severe. Obviously Congress made a distinction be- 
tween the two groups of subsections and purposely 
omitted from the latter group the description of the 
specific intent which was an essential element of 
the former. 

This last quoted paragraph should not be construed to 
mean that there is no requirement of mens rea in 18 
U.S.C. § 201 (g) but rather that it does require a general 
criminal intent. This point brings us to the argument 
that § 201 is constitutionally overbroad because it 
reaches legitimate activities that are guaranteed by the 
United States Constitution. The defendant argues that 
under § 201 (g) 5 an elected official can be convicted for 
receiving money given by a grateful constituent who is 
pleased by a vote that has already been made and that, 
as a result, the statute infringes on the first amend- 
ment rights of political speech and association. This 
argument ignores the tripartite distinction between 
guilt under § 201 (c)(1), guilt under § 201 (g), and inno- 



5 18 U.S.C. § 201 (g) provides as follows: 

(g) Whoever, being a public official, former public official, or 
person selected to be a public official, otherwise than as provided 
by law for the proper discharge of official duty, directly or indi- 
rectly asks, demands, exacts, solicits, seeks, accepts, receives, or 
agrees to receive anything of value for himself for or because of 
any official act performed or to be performed by him; or 



325 

cence that was outlined in United States v. Brewster, 
506 F.2d 62, 78-79 (D.C. Cir. 1974): 

Where the statute does cause great difficulty for 
a trial judge, a difficulty which we hold proved 
fatal to the conviction in this case, is that in addi- 
tion to the problem of drawing a distinction be- 
tween one definable offense and innocent conduct, 
where both offenses are charged a trial judge must 
also draw a tripartite distinction between conduct 
with the defined intent to constitute an offense 
under the bribery section (c), conduct with the req- 
uisite intent to constitute an offense under the gra- 
tuity section (g), and conduct with an intent which 
constitutes no offense at all. 

Title 18 U.S.C. § 201 (g) requires no element of quid 
pro quo; nor does it require a specific intent. Section (g) 
does, however, require a mens rea. It is necessary that 
the Government prove that the defendant committed 
the act prohibited knowingly and not through accident 
or mistake. If an elected official receives campaign 
money given by a grateful constituent who is pleased by 
a vote that has already been made, then clearly there is 
no violation of subsection (g). However, if this grateful 
constituent attaches a note saying this is for your vote 
which you cast last week in favor of our labor bill which 
was pending before you, then subsection (g) would be 
applicable. The difference between the two hypotheti- 
cal is that in the first example the contribution was 
unrelated to an official act while in the second example 
the elected official knew that the contribution was due 
to an official act, and therefore within the scope of 18 
U.S.C. § 201 (g). The court in United States v. Brewster 
recognized the dissimilar degree of intent: 

The defendant further argues that section 201 (g) 
is unconstitutionally overbroad because it reaches 
legitimate campaign contributions, which arguably 
can be characterized as the sort of political, associa- 
tional activity protected by the First Amendment. 
To the contrary, however, a public official's accept- 
ance of a thing of value unrelated to the perform- 
ance of any official act and all bona fide contribu- 



326 

tions directed to a lawfully conducted campaign 
committee or other person or entity are not prohib- 
ited by 201 (g). What is outlawed is only the know- 
ing and purposeful receipt by a public official of a 
payment, made in consideration of an official act 
for himself Congress has an indisputable interest 
in proscribing such conduct as a means for preserv- 
ing the integrity of governmental operations. This 
interest supersedes any conceivable First Amend- 
ment value related to such conduct. 
Id. at 77. (Emphasis added). 

In light of the prevailing jurisprudence, which has 
explicitly upheld the constitutionality of 18 U.S.C. § 201, 
the defendant's attack must fail, and the motion to 
dismiss the indictment is therefore denied. 

II. MOTION BY DEFENDANT TO DISMISS OR TO COMPEL 
ELECTION OF COUNTS 

Mr. Passman's instant motion seeks to have this court 
dismiss counts 2 through 7 of the indictment or in the 
alternative to compel the prosecution to elect the counts 
on which it wishes to proceed. The indictment which 
the defendant is charged with is broken down into 
seven counts. The first count of the indictment charges 
Mr. Passman with the commission of 18 U.S.C. § 371, 
which is conspiracy. Counts 2 through 4 charge the 
defendant with 18 U.S.C. § 201 (c)(1), which is the crimi- 
nal statute on bribery. The last three counts (counts 5 
through 7) charge the defendant with the same acts 
that he allegedly committed under counts 2 through 4 
but under 18 U.S.C. §201 (g), which is the gratuity 
subsection of § 201. 

The foundation of defendant's motion rests upon the 
supposition that to deny it would have the effect of 
placing the defendant in double jeopardy, subject him to 
the possible danger of a compromise by the jury, and 
result in an indictment that is multiplicitous. The de- 
fendant's motion reads in pertinent part: 



327 

* * * because those counts of that indictment are 
multiplications, and place the defendant in double 
jeopardy in that: 

(1) Counts 2 and 5 each allege the same offense in 
two counts; 

(2) Counts 3 and 6 each allege the same offense in 
two counts; 

(3) Counts 4 and 7 each allege the same offense in 
two counts; 

(4) Counts 2, 3 and 4 charge three parts of the 
same transaction, and thus the same offense, in 
three counts rather than three separate offenses; 

(5) Counts 5, 6 and 7 charge three parts of the 
same transaction, and thus the same offense, rather 
than three separate offenses. 

After careful consideration of the memorandum sub- 
mitted by counsel, a review of the authorities, and the 
benefit of oral argument we have determined that this 
motion must be denied. 

A. Multiplicity 

Multiplicity is often used in discussing criminal 
joinder. Multiplicity is the charging of the same offense 
in more than one count. 1 C. WRIGHT, FEDERAL 
PRACTICE AND PROCEDURE § 142, p. 306 (1969) (foot- 
notes omitted). 

1. The relationship of counts 2> 3 and 4 to counts 5, 6 
and 7 of the indictment — The defendant asserts, and 
correctly so, that both counts 2 and 5 of the indictment 
recite the same alleged transaction, involving the same 
$50,000.00, between Otto E. Passman and Tong Sun 
Park on the same date, April 11, 1973. In like manner, 
counts 3 and 6 allege the same transaction involving 
the same $20,000.00 on the same date, June 11, 1973. 
Additionally counts 4 and 7 allege the same transaction 
involving the identical $20,000.00, on June 13, 1973. 
Counts 2 through 4 charge violations of 18 U.S.C. § 201 
(c)(1) and counts 5 through 7 charge violations of 18 
U.S.C. §201 (g). The fact that defendant is charged 
twice with the same transaction does not mean he is 
necessarily being charged with the same offense. One 



328 

act or transaction may violate two or more statutes and 
constitute independent offenses. Morgan v. Devine, 237 
U.S. 632 (1914); Burton v. United States, 202 U.S. 344 
(1906); Hattaway v. United States, 399 F.2d 431 (5th Cir. 
1968). 

There is ample authority that the bribery counts 
under 18 U.S.C. § 201 (c)(1) (Counts 2, 3 and 4) may be 
separate crimes composed of different elements from 
the three illegal gratuity counts under 18 U.S.C. § 201 
(g) (counts 5, 6 and 7). See, e.g., United States v. Brewster, 
506 F.2d 62, 67-76 (D.C. Cir. 1974). By charging the 
defendant under both subsections, the government is 
putting him on notice that he must defend against both. 
Depending upon the evidence presented at trial, the 201 
(g) counts could be lesser included offenses under the 
§ 201 (c)(1) charges, but they also could be entirely dis- 
tinct and not necessarily included offenses under 201 
(c)(1). United States v. Brewster, supra. 

Section 201 of Title 18 of the United States Code was 
designed to protect the public against public officials 
and those people who interact with these officials in a 
culpable manner. Certainly, there is a high degree of 
overlap between the various subsections of § 201, but 
there is also dissimilarity and in some instances even 
inconsistencies between the subparts. The graphical 
analysis used in United States v. Brewster, supra, at 67, 
may prove helpful at this point: 

Bribery Section (cXV Gratuity Section (g) 

(c) Whoever, being a public official [ ] or (g) Whoever, being a public official, 
person selected to be a public official, [former public official,] or person se- 
lected to be a public official, 

[A] corruptly asks, demands, exacts, solic- [A] otherwise than as provided by law 
its, seeks, accepts, receives, or agrees to for the proper discharge of official 
receive anything of value for himself duty, directly or indirectly asks, de- 
mands, exacts, solicits, seeks, accepts, 
receives, or agrees to receive anything 
of value for himself 

[B] or for any other person or entity, 

[C] in return for: (1) being influenced in [C] for or because of any official act per- 
his performance of any official act; formed or to be performed by him; 

A careful reading of the two subsections of § 201 
makes it apparent that they vary in many ways. More 
specifically, subsection (c)(1) is broader than subsection 
(g) in that (c)(1) may be violated if the public official 
receives value for himself or for any other person or 



329 

entity, while (g) requires that the official receive value 
for himself. (See comparative clause [B] above.) The dif- 
ferences in criminal intent have already been discussed 
in the first part of this decision, but a quick inspection 
of comparative clause [A] will illustrate that (c)(1) clear- 
ly requires a specific intent by the use of the word 
corruptly and subsection (g) would call for only a gener- 
al mens rea. Although there are other differences be- 
tween these two subsections, United States v. Brewster, 
supra, at 68, one crucial clause for illustrative purposes 
is comparative clause [C]. Subsection (c)(1) requires a 
quid pro quo, value in return for being influenced in his 
performance of any official act. Subsection (g), on the 
other hand, applies to any official act performed or to be 
performed by him. This means that subsection (g) is not 
a necessarily lesser included offense. If subsection (g) is 
a lesser included offense, it need not be alleged in a 
separate count and, indeed, could prejudice the defend- 
ant if it were. Assuming that the evidence adduced at 
trial meets the requirements of United States v. Whi- 
taker, 447 F.2d 314 (D.C. Cir. 1971), then the parties 
may ask for a charge to the jury of a lesser included 
offense. But subsection (g) will not always be a lesser 
included offense of subsection (c)(1). For subsection (g) to 
always be a lesser included offense it would have to be a 
necessarily lesser included offense. In a necessarily 
lesser included offense the greater always subsumes the 
lesser. This means that everytime you prove the greater 
offense you necessarily prove each and every element of 
the lesser included offense. 

One offense is necessarily included in another if 
it is impossible to commit the greater without also 
having committed the lesser. Thus murder includes 
such lesser offenses as second-degree murder, man- 
slaughter, and negligent homicide. Robbery necesar- 
ily includes larceny, and assault with intent to rob. 
Rape necessarily includes assault with intent to 
rape. Assault with a dangerous weapon includes 
simple assault. Theft of property in excess of $100 
includes the lesser wrong of theft of property of 
value not exceeding $100. In each of these instances 



330 

some of the elements of the greater crime charged 
are in themselves enough to constitute the lesser 
crime. 

* * * The doctrine also does not apply if some ele- 
ment is required for the lesser offense but not for 
the greater. In this situation two different crimes 
are involved, and the lesser is not necessarily in- 
cluded in the greater, since it would be possible to 
commit the greater without also having committed 
the lesser. 

2 C. WRIGHT, FEDERAL PRACTICE AND PROCE- 
DURE § 515 (1969) (footnotes omitted). 

Subsection (g) is not a necessarily lesser included of- 
fense of subsection (c)(1) because there are some situa- 
tions where proof of (c)(1) would not support a convic- 
tion under (g). For example, if there was a conviction 
under (c)(1) for receiving anything of value for any 
other person or entity this would not support a convic- 
tion under (g) because that subsection requires that 
value be received for himself. (See comparative clause 
[B].) 

Conversely, for a crime to be a necessarily lesser in- 
cluded offense, the lesser included offense must be able 
to serve as a predicate for a conviction of the greater 
offense in all cases. Here, again, subsections (g) and 
(c)(1) deviate in certain cases. A conviction under (g) for 
an act done prior to receiving value would not serve as 
a predicate for a conviction on (c)(1), because (c)(1) does 
not apply to prior acts. (See comparative clause [C].) 

It is important to note that, in United States v. Brew- 
ster, 506 F.2d 62, 67-76 (D.C. Cir. 1974), the court of 
appeal had the benefit of all the facts developed at trial. 
It is impossible, at this stage in the proceedings, to 
declare the indictment multiplicitous on these grounds. 
If the indictment subsequently becomes multiplicitous, 
the defendant would not be precluded from relief. 

An indictment or information charging the same 
offense in more than one count is multiplicitous, 
but this also is not fatal and does not require dis- 
missal of the indictment. Defendant may move to 
have the prosecution elect, and the counts will be 






331 

consolidated and all but the one elected dismissed, 
but even this is discretionary with the court. The 
principal danger in multiplicity is that defendant 
will be given multiple sentences for the same of- 
fense. A remedy is available at any time if defend- 
ant is given multiple sentences. 

2 C. WRIGHT, FEDERAL PRACTICE AND PROCE- 
DURE § 145 (1969) (footnotes omitted). 

2. The relationship of counts 2, 3, and 4- — Mr. Pass- 
man contends that counts 2, 3, and 4 charge three parts 
of the same transaction, and thus the same offense, in 
three counts rather than three separate offenses. This 
position is incorrect and cannot be sustained for the 
following reasons. 

As stated earlier, counts 2 and 5 recite a transaction 
of April 11, 1973 involving the sum of $50,000.00. Counts 

3 and 6 allege a transaction on June 11, 1973, and the 
payment of $20,000.00. Finally counts 4 and 7 plead 
certain acts in connection with the receipt of $28,000.00 
on June 13, 1973. 

The bribery statute, 18 U.S.C. § 201, is drafted so that 
a violation occurs each time a thing of value is passed 
to a public official. United States v. Anderson, 509 F.2d 
312, 333 (D.C. Cir. 1974). These statutes are designed to 
prevent abuse of governmental power. The transactions 
alleged in the indictment, although similar, are not de- 
pendent on each other. One transaction could have been 
completed as planned and the other may have gone 
according to plan. Each represents a distinct offense. 

3. The relationship of counts 5, 6 and 7. — We hold 
that, for the same reasons given above (subsection 2), 
counts 5, 6 and 7 do not allege one offense but are 
separate and distinct offenses. 

4. The relationship of count 1 to counts 2, 3, 4, 5, 6> 
and 7. — The defendant argues here that counts 2 
through 7 of the indictment embody a continuous single 
offense as the object of the conspiracy alleged in Count 
1. Apparently, defendant's contention is that, since the 
substantive offenses charged in Counts 2 through 7 also 
are listed as overt acts in the single conspiracy alleged, 



332 

the transactions charged as the objects of that conspir- 
acy can only culminated in one offense. 

The problem with this argument is that the hypoth- 
esis precedes the premise and the premise ignores the 
critical difference between a conspiracy charge and a 
substantive charge. It is well-settled that conspiracy to 
commit an offense and the offense itself are distinct 
crimes that may be separately charged and punished. 
Pinkerton v. United States, 328 U.S. 640 (1946); Braver- 
man v. United States, 317 U.S. 49 (1942); United States 
v. Toombs, 497 F.2d 88 (5th Cir. 1974); United States v. 
Bally Manufacturing Co., 345 F. Supp. 410 (E.D. La. 
1972); United States v. Boyle, 338 F. Supp. 1028 (D.C. 
1972). Moreover, one conspiracy may result in violations 
of several substantive statutes. Brauerman v. United 
States, 317 U.S. 49 (1942); United States v. DiStefano, 
361 F. Supp. 971 (M.D. Fla. 1973); United States v. Bally 
Manufacturing Co., 345 F. Supp. 410 (E.D. La. 1972). 

B. Double jeopardy 

Mr. Passman argues that, to permit him to be tried 
both under Section 201 (c)(1) and 201 (g), for the same 
allegedly criminal act would risk placing him in double 
jeopardy. It is a basic principle of criminal law that 
double jeopardy applies only when there is a second 
prosecution, or a subsequent prosecution after a prior 
pleading of guilty on the same offense. IB J. MOORE, 
FEDERAL PRACTICE, fl 0.418[2], at 2751 (2d ed. 1974). 
The case cited by the defendant, United States v. 
Umans, 368 F.2d 725 (2d Cir. 1966), did not discuss 
double jeopardy. In Umans, the court found subsection 
(f) to be a lesser included offense of (b) under 18 U.S.C. 
§ 201 and therefore punishment under both to be im- 
proper, but it did not concern double jeopardy. 

* * * Therefore, the correct relationship between 
§201 (b) and §201 (f) is that §201 (f) is a lesser 
included offense of § 201 (b). There is no reason to 
believe that Congress intended that there should be 
concurrent convictions and sentences under both 
sections, and we should not allow multiple convic- 
tions based on the same transactions even where 



333 

the sentences are concurrent. The sentences on the 
lesser § 201 (f) counts therefore are vacated. 
Id. at 730. 

C. Compromise verdit 

Congressman Passman finally argues that charging 
him under both subsections of Section 201 for each 
transaction presents a danger that the defendant may 
suffer by a compromise. The defendant argues that 
rather than risk a compromise by the risks inherent in 
explaining to the jury the difference between guilt 
under subsection (c)(1), guilt under subsection (g), and 
innocence, the prosecution should be forced from the 
outset to proceed under one subsection of Section 201. 
The authority cited in support of this position is United 
States v. Brewster, 506 F.2d 62, 79 (D.C. Cir. 1974). Brew- 
ster, cannot be read as authority for compelling the 
prosecution to elect between counts. Senator Brewster 
was indicted on bribery under § 201 (c)(1). The prosecu- 
tion asked for instructions on a lesser included offense 
of § 201 (g), which the trial court granted. The court of 
appeal reversed the conviction on § 201 (g) because the 
trial court had failed to instruct the jury properly. The 
court did not hold that the government could be com- 
pelled to elect, but rather that the prosecution might 
wish to pursue the safer course of proceeding under 
only one of the subsections. 

III. CONCLUSION 

In summary and conclusion we find that neither 18 
U.S.C. § 201 (c) or (g) is unconstitutionally vague or 
overbroad. 

We find that the motion to dismiss or compel election 
of counts is not appropriate at this stage in the proceed- 
ing. 

Accordingly, both motions herein are denied. 

SIGNED in Chambers at Lake Charles, Louisiana, 
this 29th day of September, 1978. 

Earl E. Veron, 
United States District Judge. 



In the United States District Court for the Western 
District of Pennsylvania 



Criminal Action No. 78-207 

United States of America 

u. 

Frank M. Clark 



SNYDER, J. 

Opinion 

The grand jury, by indictment filed September 5, 
1978, charged Congressman Frank M. Clark in Counts 
One through Nine with devising and intending to devise 
a scheme to defraud the United States of America by 
preparing and submitting clerk-hire allowance and pay- 
roll authorization forms to the Office of Finance of the 
House of Representatives so that the individuals named 
in these Counts would receive checks from the House of 
Representatives to pay them for "maintaining, staffing, 
and operating various campaign headquarters opened 
for the purpose of reelecting the defendant to Congress' ' 
while these individuals "were performing little, if any, 
of the type of services which would entitle them to the 
salaries stated in the clerk hire forms." Various dates 
were set forth on which "for the purpose of executing 
the above scheme and artifice to defraud and attempt- 
ing to do so", Congressman Clark "did knowingly cause 
to be sent and delivered by the United States Postal 
Service, envelopes addressed to the persons [listed in 
the indictment] containing United States Treasury 

(335) 



336 

checks in the amounts [listed in the indictment]/ ' All of 
the above actions are alleged to be in violation of 18 
U.S.C. § 1341. 1 

Count Ten charges that during the investigation of 
alleged violations by Congressman Clark of 18 U.S.C. 
§201, and other offenses against the United States, Con- 
gressman Clark, although sworn to testify truthfully, 
knowingly made false material declarations in the 
grand jury proceedings with respect to the following 
questions and answers: 

"Q. Have you ever received payment from any 
one other than your Congressional salary and of 
course stocks that you might have accumulated 
over the years? 

A. Rephrase that again please? 

Q. Have you ever received any monies? 

A. Are you talking about cash? 

Q. Cash, checks, whatever, any monies of any sort 
other than your Congressional salary and of course 
any stocks that you may have been able to accumu- 
late over the years and I mean that sort of thing? 

A. No, except at campaign time and that is all 
logged for Clark For Congress Committee/' 

It is then charged that Congressman Clark knew these 
answers were not true in that he received cash, checks, 
and other monies in addition to those received as his 
Congressional salary and dividends from stocks he 



1 18 U.S.C. § 1341 provides in pertinent part: 

"Whoever, having devised or intending to devise any scheme or 
artifice to defraud, or for obtaining money or property by means of 
false or fraudulent pretenses, representations, or promises, * * * , 
for the purpose of executing such scheme or artifice or attempting 
to do so, places in any post office or authorized depository for mail 
matter, any matter or thing whatever to be sent or delivered by 
the Postal Service, or takes or receives therefrom, any such matter 
or thing, or knowingly causes to be delivered by mail according to 
the direction thereon, or at the place at which it is directed to be 
delivered by the person to whom it is addressed, any such matter 
or thing shall be fined not more than $1,000 or imprisoned not 
more than 5 years, or both. 



337 

owned which were not reported by any campaign com- 
mittee allegedly in violation of 18 U.S.C. § 1623. 2 

Counts Eleven, Twelve and Thirteen complete the in- 
dictment by charging the Defendant with a willful and 
knowing attempt to evade and defeat taxes due the 
United States for the calendar years 1972, 1973 and 
1974, by concealing and covering up sources of income; 
placing funds in the name of nominees; falsifying rec- 
ords; and making a false declaration to a Federal grand 
jury. It is alleged that there was owing from him to the 
United States additional tax on $8,941.17 of $1,370.34 
for 1972; for 1973, additional tax on $11,701.77 of 
$1,758.90; and for 1974, additional tax on $16,906.45 of 
$7,075.40. 

The Defendant entered his plea of not guilty to this 
indictment on September 11, 1978, and immediately 
thereafter, filed a Motion for Bill of Particulars and a 
Motion for Extension of Time to File Additional Pre- 
trial Motions. 

The principal basis for the Motion for Extension of 
Time was that until the Motion for Bill of Particulars 
was granted and the detailed information requested in 
the Motion was obtained, defense counsel could not as- 
certain whether a motion for severance of counts for 
prejudicial joinder should be filed. In addition, defense 
counsel set forth that he would be engaged in trial in a 
remote Pennsylvania county commencing September 18, 
1978, which could take up to one month, and that he 
would need additional time in which to prepare the 
defense in that case. 

The Motion for Bill of Particulars requested that the 
Government state the theory or theories which form the 
basis of its proof of the alleged additional taxable 



2 18 U.S.C. 1623 provides in pertinent part: 

"Whoever under oath (or in any declaration, certificate, verifica- 
tion, or statement under penalty of perjury as permitted under 
section 1746 of title 28, United States Code) in any proceeding 
before or ancillary to any court or grand jury of the United States 
knowingly makes any false material declaration or makes or uses 
any other information, including any book, paper, document, 
record, recording, or other material, knowing the same to contain 
any false material declaration, shall be fined not more than $10,000 
or imprisoned not more than 5 years, or both." 



338 

income and, if based on specific items of income alleged- 
ly not included in the Defendant's tax returns for the 
years in question, set forth: a) the source of said income, 
b) each of the amounts^ allegedly pai d, an d c) the date of 
each alleged payment. 

For the convenience of counsel for the Defendant, a 
conference was held the next day and, at that time, the 
Government indicated that it was relying on the specific 
items theory. The Motion for Extension of Time to File 
Additional Pretrial Motions was granted for 30 days, 
and the Motion for Bill of Particulars was taken under 
advisement with the Government to file a Reply to 
Defendant's Brief, already on file with the Court, within 
10 days. 

After consideration of the Briefs of counsel and their 
prior arguments at the conference, the Motion for Bill 
of Particulars will be granted as herein delineated. The 
Defendant argues with considerable merit that it is im- 
possible for counsel to know from the indictment wheth- 
er a motion for severance should be filed, for it is impos- 
sible to tell from the indictment whether there is any 
connection between the mail fraud charges and the tax 
evasion charges. 

An application for a bill of particulars made pursuant 
to the provisions of Fed.R.Crim.P. 7(f) 4 is one addressed 
to the sound discretion of the court. Wong Tai v. United 
States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1927); 
United States v. Kafes, 214 F.2d 887, cert. den. 348 U.S. 
887, 75 S.Ct. 207, 99 L.Ed. 697 (1954). It is the function 
of the court at this time to insure that the Government 
has presented allegations which provide a defendant 
with certain minimum details concerning the charges 
against him to enable a defendant to adequately pre- 
pare his defense, to avoid prejudicial surprise at trial, 
and to permit a defendant to plead double jeopardy if 



4 Fed.R.Crim.P.7(f) states: 

"The court may direct the filing of a bill of particulars. A motion 
for a bill of particulars may be made before arraignment or within 
10 days after arraignment or at such later time as the court may 
permit. A bill of particulars may be amended at any time subject 
to such conditions as justice requires." (As amended Feb. 28, 1966, 
eff. July 1, 1966; Apr. 24, 1972, eff. Oct. 1, 1972.) 



339 

subsequent prosecution for the same offense should 
follow. United States v. Jaskiewicz, 278 F. Supp. 525 
(E.D.Pa. 1968). The 1966 Amendment to 
Fed.R.Crim.P.7(f) eliminating the requirement that 
cause be shown before a bill of particulars may be or- 
dered was designed to encourage a more liberal attitude 
by the courts. The net result of the change seems to 
have been "to increase the instances in which particu- 
lars are granted, thus contributing to a desirable de- 
cline in the 'sporting theory' of criminal justice." 
United States v. Addonizio, 451 F.2d 49, 64 (3rd Cir. 
1971), cert den. 405 U.S. 936, 92 S.Ct. 949, 30 L.Ed.2d 
812 (1972). As was stated by Judge Rosenn of our Circuit 
in United States v. Addonizio, supra: 

"This liberalization has, out of practical necessi- 
ty, been limited in some important respects, howev- 
er. It is still firmly established, for example, that a 
defendant is entitled neither to a wholesale discov- 
ery of the Government's evidence, United States v. 
Birrell, 263 F.Supp. 113 (S.D.N. Y. 1967), nor to a list 
of the Government's prospective witnesses, United 
States v. Jaskiewicz, supra [278 F.Supp. 525 (E.D.Pa. 
1968)]; United States v. Palmisano, 273 F.Supp. 750 
(E.D.Pa. 1967). In the final analysis then, the grant- 
ing of a bill of particulars remains a discretionary 
matter with the trial court, and it is still 'obviously 
a matter of degree how far an accused must be 
advised in advance of the details of the evidence 
that will be produced against him, and no definite 
rules are possible.' United States v. Russo, 260 F.2d 
849, 850 (2nd Cir. 1958)." (Footnote omitted) 

From the face of the indictment, the Defendant is not 
aware of the specific items which the Government in- 
tends to use to support its theory of income tax evasion. 
After carefully weighing all the arguments, while nei- 
ther the Government's evidence nor its prospective wit- 
nesses need be disclosed, we conclude that ten days 
should be given to the Government to file a Bill of 
Particulars specifying the specific items in each Count 
of the Indictment on which it will rely to prove the 
amount of additional income tax that was allegedly 



340 

evaded and the source of those items. It is not necessary 
that the Government set forth the dates of payments as 
it need not weave the information at its command into 
the fully integrated trial theory. This Bill of Particulars 
is ordered solely because of the necessity of determining 
the inter-relationship of the Counts. 
An appropriate Order will be entered. 

Daniel J. Snyder, Jr., 
United States District Judge. 

Dated: September 29, 1978. 

cc: United States Attorney 
Pittsburgh, Pa. 15219 
Harold Gondelman, Esq. 
10th Floor, Frick Building 
Pittsburgh, Pa. 15219 



In the United States District Court for the Western 
District of Pennsylvania 



Criminal Action No. 78-207 

United States of America 

v. 

Frank M. Clark 



Order 



AND NOW, to-wit this 29th day of September, 1978, 
after hearing and due consideration of the briefs and 
arguments of counsel, and for the reasons set forth in 
the Opinion filed herewith, 

IT IS ORDERED that the Defendant's Motion for Bill 
of Particulars is granted insofar as it requests the 



341 

source and amounts of the specific items of income al- 
legedly not included in Defendant's income tax returns 
for the years 1972, 1973 and 1974. 

IT IS FURTHER ORDERED that the Government 
furnish said Bill of Particulars within ten days of the 
date of this Order. 

Daniel J. Snyder, Jr, 
United States District Judge. 

cc: United States Attorney 
Harold Gondelman, Esq. 



APPENDIX 



Members of the 95th Congress Parties to or Directly 
Concerned With Litigation Affecting Congress 

Alphabetical Listing by Member's Name 

senate 

Howard W. Cannon United States ex rel. Joseph v. Cannon 

Alan Cranston Chase v. Kennedy 

Goldwater v. Carter 

Carl T. Curtis Laxalt v. Kimmitt 

Jake Garn Goldwater v. Carter 

Barry Goldwater Laxalt v. Kimmitt 

Mike Gravel Goldwater v. Carter 

Laxalt v. Kimmitt 

Robert P. Griffin Patterson v. Griffin 

Orrin Hatch Goldwater v. Carter 

Jesse Helms Goldwater v. Carter 

Jacob Javits Nixon v. Sampson 

Edward M. Kennedy Chase v. Kennedy 

Paul Laxalt Laxalt v. Kimmitt 

Robert Morgan In re Japanese Electronic Products 

Antitrust Litigation 

Gaylord Nelson Nixon v. Sampson 

William Proxmire Hutchinson v. Proxmire 

Ray v. Proxmire 
Adlai E. Stevenson III.. Chase v. Kennedy 

Laxalt v. Kimmitt 
Herman E. Talmadge... Littlejohn v. Talmadge 

Strom Thurmond Goldwater v. Carter 

Lowell P. Weicker Laxalt v. Kimmitt 

HOUSE OF REPRESENTATIVES 

John Ashbrook Goldwater v. Carter 

Les AuCoin Davis v. Passman 

Robert Bauman Goldwater v. Carter 

Berkley Bedell Davis v. Passman 

David Bonior Davis v. Passman 

John Brademas Nixon v. Sampson 

William M. Brodhead... Davis v. Passman 

George E. Brown, Jr .... Davis v. Passman 

John H. Buchanan, Jr.. Davis v. Passman 
Yvonne Brathwaite 

Burke Davis v. Passman 

Robert Carr Davis v. Passman 

Shirley A. Chisholm Lewis v. Chisholm 

(345) 



346 

William Clay Clay v. Bauman 

John Conyers Davis v. Passman 

Robert Daniel, Jr Goldwater v. Carter 

Ronald V. Dellums Dellums v. Powell 

Powell v. Dellums 

Wilson v. Dellums 

Davis v. Passman 

Charles C. Diggs, Jr United States v. Diggs 

Thomas Downey Davis v. Passman 

Robert F. Drinan Davis v. Passman 

Don Edwards Davis v. Passman 

Joshua Eilberg United States v. Eilberg 

Dante B. Fascell Davis v. Passman 

Daniel J. Flood United States v. Flood 

John J. Flynt, Jr Clancey v. Albert 

Donald M. Fraser Holy Spirit Association v. Fraser 

George Hansen Daughtrey v. Carter 

Goldwater v. Carter 

William H. Harsha Rusack v. Harsha 

Elizabeth Holtzman Nixon v. Sampson 

Dale E. Kildee Davis v. Passman 

William Lehman Davis v. Passman 

Edward J. Markey Davis v. Passman 

Lawrence P. McDonald Daughtrey v. Carter 

Goldwater v. Carter 

George Miller Davis v. Passman 

Anthony Moffett Davis v. Passman 

John E. Moss United States v. American Telephone and 

Telegraph Co. 

Richard Nolan Davis v. Passman 

Leon Panetta Davis v. Passman 

D. J. Pease Davis v. Passman 

Charles Rangel Cervase v. Rangel 

Henry S. Reuss Reuss v. Balles 

Fred Richmond Davis v. Passman 

Peter Rodino Schwartz v. United States Department of 

Justice 

Charles Rose Davis v. Passman 

Eldon Rudd Goldwater v. Carter 

Patricia Schroeder Davis v. Passman 

Bob Stump Goldwater v. Carter 

Steven P. Symms Goldwater v. Carter 

Frank Thompson, Jr Chadha v. Immigration and Naturalization 

Service 

Morris K. Udall Davis v. Passman 

Bruce F. Vento Davis v. Passman 

Harold L. Volkner Davis v. Passman 

Ted Weiss Davis v. Passman 

John Young Young v. New York Times 

Rosen v. Young 

Gardner v. Young 
United States House of 

Representatives Clancey v. A Ibert 



INDEX 



Table of Cases Reported 
A 

Page 

Abney v. United States Capitol Hill Policeman 136 

Albert, Clancey v 1 

American Telephone and Telegraph Co., United States v 43 

Andrus, Koniag, Inc. v 50 

Application of House Select Committee on Assassinations 69 

Application of Senate Select Committee on Ethics 69 

B 

Bagley, Iowa Beef Producers, Inc. v 66 

Balles, Reuss v 150 

Bauman, Clay v 157 

Beef Industry Antitrust Litigation, In re 65 

Berrellez, United States v 62 

Bolger, Common Cause v 117 

Brislin v. United States 116 

C 

Califano, McRae v 158 

Cannon, United States ex rel. Joseph v 172 

Carter, Daughtrey v 101 

Carter, Goldwater v 109 

Central Intelligence Agency, Goland v 95 

Cervase v. Rangel 165 

Chadha v. Immigration and Naturalization Service 71 

Chase v. Kennedy 37 

Chisholm, Lewis v 135 

Citronelle-Mobile Gathering, Inc. u. Gulf Oil Corp 93 

Clancey v. Albert 1 

Clark, United States v L82 

Clay v Bauman 157 

Common Cause v. Bailar 117 

Community-Service Broadcasting of Mid-America, Inc. v. Fed- 
eral Communications Commission 176 

D 

Daughtrey v. Carter 101 

Davis v. Passman T 

Dellums, Powell v 145 

Dellums v. Powell 145 

Dellums, Wilson v 145 

Diggs, United States u 175 

(349) 



350 

E 

Eilberg, United States v 184 

Elko, United States v 116 

Exxon Corp. v. Federal Trade Commission 55 

F 

Federal Communications Commission, Community-Service 

Broadcasting of Mid-America, Inc. v 176 

Federal Election Commission, Martin Tractor Co. v 136 

Federal Trade Commission, Exxon Corp. v 55 

Federal Trade Commission, Kerr-McGee Corp. v 55 

Federal Trade Commission, Union Carbide Corp. v 55 

Flood, United States v 183 

Fraser, Holy Spirit Association v 64 

G 

Gardner v. Young 164 

Gerrity, United States v 63 

Goland v. Central Intelligence Agency 95 

Goldberg, United States v 167 

Goldstein, Helstoski v 164 

Goldwater v. Carter 109 

Griffin, Patterson v 180 

Gulf Oil Corp., Citronelle-Mobile Gathering, Inc. v 93 

H 

Hanna, United States v 173 

Harsha, Rusack v 38 

Helstoski v. Goldstein 164 

Helstoski v. Meanor 28 

Helstoski, United States v 28 

Henshaw, Socialist Workers v 113 

Holy Spirit Association v. Fraser 64 

Hutchinson v. Proxmire 23 

I 

Immigration and Naturalization Service, Chadha v 71 

Iowa Beef Producers, Inc. v. Bagley 66 

J 

Japanese Electronic Products Antitrust Litigation, In re 184 

K 

Kennedy, Chase v 37 

Kerr-McGee Corp. v. Federal Trade Commission 55 

Kimmitt, Laxalt v 2 

Koniag, Inc. v. Andrus 50 



351 

L 

Laxalt v. Kimmitt 2 

Lewis v. Chisholm 135 

Littlejohn v. Talmadge 181 

M 

Martin Tractor Co. v. Federal Election Commission 136 

McAdams (formerly McClellan) v. McSurely 14 

McRae v. Califano 158 

McSurely, McAdams (formerly McClellan) v 14 

Meanor, Helstoski v 28 

Moreau v. Tonry 141 

N 

New York Times, Young v 162 

Nixon u. Sampson 73 

Nixon v. Solomon 92 

P 

Passman, Davis v 7 

Passman, United States v 174 

Patterson v. Griffin 180 

Podell, United States v 155 

Powell, Dellums v 145 

Powell v. Dellums 145 

Powell v. United States 68 

Proxmire, Hutchinson v 23 

Proxmire, Ray v 161 

R 

Rangel, Cervase v 165 

Ray v. Proxmire 161 

Reuss v. Balles 150 

Rosen v. Young 163 

Rusack v. Harsha 38 

S 

Sampson, Nixon v 73 

Schwartz v. United States Department of Justice 106 

Socialist Workers v. Henshaw 113 

Solomon, Nixon v 92 

Sportservice Corp. v. Steiger 149 

Steiger, Sportservice Corp. v 149 

T 

Talmadge, Littlejohn v 181 

Tonry, Moreau v 141 



352 

U 

Union Carbide Corp. v. Federal Trade Commission 55 

United States ex rel. Joseph v. Cannon 172 

United States v. American Telephone and Telegraph Co 43 

United States v. Berrellez 62 

United States v. Brislin 116 

United States v. Clark 182 

United States v. Diggs 174 

United States v. Eilberg 184 

United States v. Elko 116 

United States v. Flood 183 

United States v. Gerrity 63 

United States v. Goldberg 167 

United States v. Hanna 173 

United States v. Helstoski 28 

United States v. Passman 174 

United States v. Podell 155 

United States y. Powell 68 

United States Capitol Hill Policeman, Abney v 136 

United States Department of Justice, Schwartz v 106 

W 

Wilson v. Dellums 145 



Young, Gardner v 164 

Young v. New York Times 162 

Young, Rosen v 163 



O 



liiiiiii 

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